State v. Alston

• Decision Date: 31 May 1939
• Docket Number: 721.
• Citation: 3 S.E.2d 11,215 N.C. 713
• Parties: STATE v. ALSTON.
• Court: North Carolina Supreme Court

3 S.E.2d 11

215 N.C. 713

STATE v. ALSTON.

No. 721.

Supreme Court of North Carolina

May 31, 1939

Criminal prosecution tried upon indictment charging the defendant with the murder of one Janie Wilkerson.

Verdict Guilty of murder in the first degree.

Judgment Death by asphyxiation.

The defendant appeals, assigning errors.

Sigmund Meyer and C. W. Hall, both of Durham, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach Asst. Attys. Gen., for the State.

STACY Chief Justice.

The record discloses that on 23 December, 1937, the defendant struck the deceased over the head with a stick of wood robbed her, and left her to die, which she did as a result of the blow inflicted by the defendant.

The deceased was a Negro woman 103 years of age. She lived in Durham with two of her grandchildren. The defendant had been living in the house for about two weeks. He knew the deceased carried money on her person. After the grandchildren had gone to work, the defendant went to the room of the deceased, hit her over the head with a stick, and robbed her of $12.00 in currency which she had in a little bag tied to her dress. The defendant then went to the home of his mother, changed his clothes, got a hair cut at a barber shop, and never returned to his room in the house of the deceased. He told the officers that he robbed the deceased, and struck her for that purpose, but did not intend to kill her. He further testified that he was too drunk to know what he was doing at the time.

The jury was evidently not impressed with the defendant's plea of irresponsibility. State v. Walker, 193 N.C. 489, 137 S.E. 429; State v. English, 164 N.C. 497, 80 S.E. 72. He showed too much sprightliness in and about the robbery, and thereafter departing, for one who had been drinking to drunkenness. State v. Myrick, 203 N.C. 8, 164 S.E. 328; State v. Ross, 193 N.C. 25, 136 S.E. 193. He knew what he was doing. State v. Murphy, 157 N.C. 614, 72 S.E. 1075.

Moreover, it appears that the murder was committed in the perpetration of a robbery. State v. Lane, 166 N.C. 333, 81 S.E. 620; State v. Logan, 161 N.C. 235, 76 S.E. 1. It is provided by C.S. § 4200 that a murder "which shall be committed in the perpetration or attempt to perpetrate any *** robbery *** or other felony, shall be deemed to be murder in the first degree." State v. Gosnell, 208 N.C. 401, 181 S.E. 323; State v. Donnell, 202 N.C. 782, 164 S.E. 352; State v. Miller, 197 N.C. 445, 149 S.E. 590. The question of premeditation and deliberation or the defendant's malice aforethought in murdering the deceased, therefore, was not perforce material to the inquiry. State v. Logan, supra. The defendant slew the deceased while perpetrating a robbery from her person. This is pronounced by the statute as murder in the first degree. State v. Stefanoff, 206 N.C. 443, 174 S.E. 411; State v. Myers, 202 N.C. 351, 162 S.E. 764; State v. Donnell, 202 N.C. 782, 164 S.E. 352.

The defendant's principal exception, or the one chiefly urged on argument and in brief, relates to the admission in evidence of an alleged confession or statements made by the defendant to the officers while in their custody. State v. Exum, 213 N.C. 16, 195 S.E. 7; State v Gray, 192 N.C. 594, 135 S.E. 535. The voluntariness of the confession was the subject of a preliminary inquiry in the absence of the jury. After hearing the State's witnesses, who fully supported the solicitor's contention, the court inquired of the defendant whether he wished to be heard on the competency of the alleged confession. State v. Smith, 213 N.C. 299, 195 S.E. 819. "Whereupon counsel for defendant stated to the court that they did not desire to offer testimony upon the preliminary question before the court as to whether or not said statements were free and voluntary or otherwise." The court thereupon adjudged the statements to be admissible in evidence. The defendant noted an exception. The court again stated to the defendant that he was entitled to be heard on the preliminary inquiry touching the voluntariness of the alleged confession. "Counsel for defendant stated that they did not desire to offer such testimony before the court at this time." The exception is unavailing. State v. Stefanoff, supra. The competency of the confession was a preliminary question for the trial court, State v. Andrew, 61 N.C. 205, to be determined in the manner pointed out in State v. Whitener, 191 N.C. 659, 132 S.E. 603, and the court's ruling thereon is not subject to review, if supported by any competent evidence. State v. Moore, 210 N.C. 686, 188 S.E. 421. The defendant waived his right to offer evidence on the preliminary inquiry. State v. Hartsfield, 188 N.C. 357, 124 S.E. 629. He is in no position now to complain at the admission in evidence of the confession. State v. Smith, supra. The court's ruling is supported by...