State v. Gunter

Decision Date18 September 1935
Docket Number74.
PartiesSTATE v. GUNTER et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Madison County; Warlick, Judge.

Ories Gunter and others were convicted of murder in the first degree, and they appeal.

No error.

Criminal prosecution tried upon indictment charging the defendants with the murder of one William Thomas.

The evidence on behalf of the state tends to show that on the morning of February 15, 1935, about the hour of dawn, the defendants, pursuant to design previously formed, waylaid William Thomas, an elderly merchant of Madison county, as he was going along his customary route from his sleeping quarters to his daughter's home for breakfast, struck him over the head with an automobile ""iron tire tool," robbed him, dragged his body to an adjacent field, and left him to die, which he did in a short time thereafter. All the evidence tends to show that the defendant Arthur Gosnell struck the fatal blows. The other defendants were present, however, aiding, and abetting, and they all shared in the booty and participated in the robbery.

While in jail, awaiting trial, each defendant signed a written confession giving his version of the crime. They were all to the same effect. The competency of these confessions was challenged by objections duly entered. After a full preliminary hearing, the court ruled that they were voluntarily made, and admitted them in evidence. Exceptions.

The defendant Ories Gunter took the witness stand in his own behalf, and, on cross-examination, corroborated the state's case in all of its essential particulars.

In addition to pleading not guilty, the defendant Arthur Gosnell entered a plea of mental irresponsibility or insanity. He did not testify as a witness in his own behalf. Nor did Robert Thomas go upon the witness stand.

The court instructed the jury that only one of two verdicts-murder in the first degree or not guilty-might be returned under the evidence in the case. Exception.

Verdict "Guilty of murder in the first degree as to all of the defendants."

Judgment as to each defendant: Death by electrocution.

The defendants appeal, assigning errors.

John A Hendricks, Mack Ramsey, and Carl Stuart, all of Marshall, for appellants.

A. A F. Seawell, Atty. Gen., and John W. Aiken, Asst. Atty. Gen., for the State.

STACY Chief Justice.

There was a motion to quash the bill of indictment on the alleged ground that the grand jury, which returned the true bill, was drawn by a jury commission not competent to act, and a nonresident of the county was allowed to serve on the grand jury. State v. Wilcox, 104 N.C. 847, 10 S.E. 453. Upon a hearing, duly had, the facts were found against the defendants on their motion to quash, and with respect to the legality of the grand jury. In this, there was no error. The two rulings are directly supported by the decisions in State v. Vick, 132 N.C. 995, 43 S.E. 626, and McCullers v. Board of Com'rs, 158 N.C. 75, 73 S.E. 816, Ann. Cas. 1913D, 507.

Moreover, the questions are not properly before us. It nowhere appears on the record that a grand jury was impaneled, or that it duly returned the bill of indictment upon which the defendants were convicted. Indeed, the record fails to show that a petit jury was sworn and impaneled to try the defendants. Why debate the competency of the jury commission or the alleged disqualification of a grand juror, when it does not appear that the jurors were drawn by the commission or that a grand jury was impaneled? These were matters devolving upon the appellants. State v. Golden, 203 N.C. 440, 166 S.E. 311. It is the duty of appellants to see that the record is properly made up and transmitted to the Supreme Court. Payne v. Brown, 205 N.C. 785, 172 S.E. 348; State v. Frizell, 111 N.C. 722, 16 S.E. 409; State v. Currie, 206 N.C. 598, 174 S.E. 447; State v. McDraughon, 168 N.C. 131, 83 S.E. 181.

The holding in Spence v. Tapscott, 92 N.C. 576 (as stated in first headnote), was that: "In order for the Supreme Court to acquire jurisdiction, it must appear in the transcript of the record that an action was instituted, that proceedings were had and a judgment rendered from which an appeal could be taken, and that an appeal was taken from such judgment." See, also, Weaver v. Hampton, 206 N.C. 741, 175 S.E. 110, and State v. Stafford, 203 N.C. 601, 166 S.E. 734.

In view of the testimony, given on trial by the defendant Gunter, which amounts to a confession of guilt, and inculpates the other defendants, it would seem supererogatory to discuss the alleged involuntariness of the confessions previously made by the defendants. State v. Green, 207 N.C. 369, 177 S.E. 120. The trial court, after hearing the evidence pro and con, according to the procedure pointed out in State v. Whitener, 191 N.C. 659, 132 S.E. 603, ruled that the confessions were voluntary, and admitted them in evidence. There was abundant evidence to support the findings. No error appears in these rulings. State v. Whitener, supra; State v. Gray, 192 N.C. 594, 135 S.E. 535.

A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, but a confession wrung from the mind by the flattery of hope, or by the torture of fear, comes in such questionable shape as to merit no consideration. State v. Patrick, 48 N.C. 443.

Speaking to the subject in State v. Roberts, 12 N.C. 259 Henderson, J., said: "Confessions are either voluntary or involuntary. They are called voluntary when made neither under the influence of hope or fear, but are attributable to that love of truth which predominates in the breast of every man, not operated upon by other motives more powerful with him, and which, it is said, in the perfectly good man, cannot be countervailed. These confessions are the highest evidences of truth, even in cases affecting life. But it is said, and said with truth, that confessions...

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