State v. Kirksey

• Decision Date: 21 May 1947
• Docket Number: 579.
• Citation: 42 S.E.2d 613,227 N.C. 445
• Parties: STATE v. KIRKSEY
• Court: North Carolina Supreme Court

42 S.E.2d 613

227 N.C. 445

STATE v. KIRKSEY

No. 579.

Supreme Court of North Carolina

May 21, 1947

Criminal prosecution upon the following bill of indictment: "The jurors for the State upon their oath present, that Roy Kirksey, late of Columbus County, on the 4th day of July, A.D. 1945, with force and arms, at and in the said county, feloniously, willfully, and of his malice aforethought did kill and murder Eloise W. Kirksey contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

Verdict Guilty of the felony and murder in the manner and form as charged in the bill of indictment.

Judgment Death by the administration of lethal gas.

Defendant appeals therefrom and assigns error.

Harry M. McMullan, Atty. Gen., and T.W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Atty. Gen. for the State.

W.F. Jones and Robert C. Schulken, both of Whiteville, for defendant appellant.

WINBORNE Justice.

Defendant in brief filed in this Court presents, as involved on this appeal, three questions, which we consider seriatim:

I. The question arises in this manner: After defendant had been arraigned and had pleaded not guilty, and trial had begun, and after eleven jurors had been duly selected, and after defendant had exhausted all peremptory challenges allowed by law, another special venireman, B.J. Mincher, was called and accepted by the State, and tendered to defendant, who challenged the juror peremptorily, upon the ground that defendant, being of the colored race, and all of the eleven jurors in the box and all veniremen summoned for jury duty being white men, he was thereby denied a trial by his peers. After hearing evidence of the defendant in support of his motion and challenge to the proposed juror, the court found facts which appear of record, and thereupon overruled the defendant's motion and challenge as to B.J. Mincher. Exception by defendant.

The exception taken to the refusal of the court to sustain the challenge to the special venireman, B.J. Mincher, under the circumstances set forth, is not well taken, and is not sustained for these reasons: "Unless an objection goes to the whole panel of jurors, it may not be taken advantage of by a challenge to the array." State v. Levy, 187 N.C. 581, 122 S.E. 386, 388, citing State v. Hensley, 94 N.C. 1021; State v. Stanton, 118 N.C. 1182, 24 S.E. 536; Moore v. Navassa Guano Co., 130 N.C. 229, 41 S.E. 293; State v. Parker, 132 N.C. 1014, 43 S.E. 830; State v. Mallard, 184 N.C. 667, 114 S.E. 17.

"A challenge to the array," as stated in State v. Hensley, supra, "can only be taken when there is partiality or misconduct in the sheriff, or some irregularity in making out the list." See State v. Moore, 120 N.C. 570, 26 S.E. 697; State v. Levy, supra; State v. Dixon, 215 N.C. 438, 2 S.E.2d 371.

If defendant had wished to take advantage of his objection to the petit jury and special venire, he should have done so by challenging the array. State v. Douglass, 63 N.C. 500, and before entering upon the trial of his case.

Objections to individual jurors are made by challenges to the polls. These challenges are of two kinds--peremptory and for cause. Defendant had exhausted the number of peremptory challenges allowed to him by law, G.S. § 15-163, and the fact that the venireman tendered is a white man is not a disqualifying cause. See State v. Levy, supra, for summary of the principal challenges to the polls now recognized by our practice, and of which either side may take advantage at the trial.

Moreover, if the challenge had been timely and appropriately taken, the findings of fact by the presiding judge, which are supported by sufficient evidence, are conclusive on appeal in the absence of gross abuse. State v. Cooper, 205 N.C. 657, 172 S.E. 199; State v. Walls, 211 N.C. 487, 191 S.E. 232, in which appeal is dismissed by U.S. Supreme 302 U.S. 635, 58 S.Ct. 18, 82 L.Ed. 494; State v. Henderson, 216 N.C. 99, 3 S.E. 2d 357; State v. Daniels, 134 N.C. 641, 46 S.E. 743; Thomas v. Texas, 212 U.S. 278, 29 S.Ct. 393, 53 L.Ed. 512.

II. The second question pertains to assignment of error challenging the correctness of the action of the trial court in overruling motion of defendant for judgment as of nonsuit, and is also untenable.

The evidence for the State--the defendant having offered none--tends to show substantially these facts: On 4 July, 1945, defendant and deceased were husband and wife--though living in a state of separation, she with her mother in Columbus County, North Carolina, and he with his father, about a mile away. About sundown on that day defendant went to the home of the mother of his wife and asked for his wife. On being informed that she was in the house dressing, he went in and a fight followed, scuffling in the room, and continued out in the back yard where he was seen with an axe, and then his wife came in the house with gash cut in her arm. He remarked to his wife's mother, "I love her good enough to kill her." His wife was taken by automobile about dark to hospital in Whiteville to get her arm sewed up. Four others went with her. As they returned to the home of her mother, about midnight, defendant was seen by the light of the car, as he was coming from behind a nearby chinaberry tree, toward the car, in direction of his wife, with his hand behind him. His wife got out of the car and ran behind it, and just as she got to the back bumper, a gun in the hand of defendant fired, and she was shot in the back. She exclaimed, "Roy don't kill me now," and then, "Roy has done killed me now." No one has said anything to defendant at that time, and he said nothing before he shot. She died soon after being shot, from result of the gun shot wound. Defendant left and was arrested on 9 September, 1946, in Savannah, Georgia, more than a year thereafter.

This evidence is abundantly sufficient to support a verdict of...