State v. Atkinson, No. 22

Docket NºNo. 22
Citation167 S.E.2d 241, 275 N.C. 288
Case DateMay 14, 1969
CourtUnited States State Supreme Court of North Carolina

Page 241

167 S.E.2d 241
275 N.C. 288
STATE of North Carolina
v.
Dee D. ATKINSON.
No. 22.
Supreme Court of North Carolina.
May 14, 1969.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

George R. Kornegay, Jr., Mount Olive, and John S. Peacock, Goldsboro, for defendant.

LAKE, Justice.

G.S. § 15--180 provides that an appeal to this Court from a judgment in a criminal action 'shall be perfected and the case for the Supreme Court settled, as provided in civil actions.' G.S. § 1--282 provides that upon an appeal from a judgment in a civil action a copy of the appellant's statement of the case on appeal 'shall be served on the respondent within fifteen days from the entry of the appeal taken * * * Provided, that the judge trying the case shall have the power, in the exercise of his discretion, to enlarge the time in [275 N.C. 303] which to serve statement of case on appeal and exceptions thereto or counter statement of case.'

By the terms of the statute, only the judge who tried the case can extend the time for serving the statement of the case on appeal and this Court has held that, having granted one extension, he may not grant another after the expiration of the term at which the judgment was entered. American Floor Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659. Normally, the effect of failure to serve the appellant's statement of the case on appeal within the time fixed by the statute, or within the period of such authorized extension by the trial judge, is that upon such appeal the Supreme Court is limited to a consideration of the record proper and if no errors appear on the face thereof, the judgment will be affirmed. American Floor Machine Co. v. Dixon, supra; Twiford v. Harrison, 260 N.C. 217, 132 S.E.2d 321. 'It is the duty of appellant to see that the record is properly made up and transmitted to the Court.' State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262.

The record shows that on the day the judgment was pronounced in the superior court the defendant gave notice of appeal to this Court and the presiding judge then extended the time allowed by the statute for the service of the appellant's statement of the case on appeal to 60 days. The two subsequent orders by the judge presiding at the trial, entered after the expiration of the term at which the judgment was pronounced, undertaking further to extend the time for the service of the appellant's statement of the case on appeal and a subsequent order entered by a different judge, undertaking further to extend the time for the service of the statement of the case on appeal, were nullities.

Page 250

After an appeal is taken, the court from which it is taken has no authority with reference to the appellate procedure except that specifically conferred upon it by the statute. See American Floor Machine Co. v. Dixon, supra. Further extensions of time may be obtained only by petitions for certiorari directed to the court to which the appeal has been taken. No such petition was filed by the defendant with this Court. However, in the exercise of our discretion and in view of the imposition of the death penalty in the superior court, we, upon our own motion, treat the appeal as a petition for certiorari, allow the same and consider all assignments of error upon their merits as if the case on appeal had been served within the time properly allowed therefor.

Jurors Challenged Because Of Views Concerning Capital Punishment

The record discloses no error in the rulings of the trial judge [275 N.C. 304] upon challenges for cause by the State to prospective jurors as the result of their stated views on the subject of capital punishment.

Prior to the decision of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, it was well established that, under the law of this State, it was not error to allow challenges for cause by the State to prospective jurors who stated they had 'conscientious scruples against the infliction of the death penalty' in a case where such penalty might be inflicted pursuant to a verdict of guilty. State v. Spence (first hearing), 271 N.C. 23, 155 S.E.2d 802; State v. Bumpers (first hearing), 270 N.C. 521, 155 S.E.2d 173; State v. Childs, 269 N.C. 307, 152 S.E.2d 453. See also State v. Peele, 274 N.C. 106, 161 S.E.2d 568. In State v. Vick, 132 N.C. 995, 43 S.E. 626, the Court quoted with approval the following statement in 17 A. and E.Enc. 1134:

'Though no such ground of challenge is to be found stated in the English cases, in the United States, since the early part of the Nineteenth Century, the fact that one has conscientious scruples against the infliction of capital punishment has been regarded as disqualification furnishing ground for challenge by the prosecution on a trial for offenses which may be punished by death.'

The law of this State, as distinguished from the Constitution of the United States, has not been changed in this respect since those decisions were rendered.

The Constitution of the United States, as interpreted by the Supreme Court of the United States in the Witherspoon case, supra, is, of course, controlling insofar as it conflicts with the law of this State and we so recognized in State v. Spence, (hearing on remand), 274 N.C. 536, 164 S.E.2d 593. There we allowed a new trial because the record contained a stipulation that 79 of 150 veniremen were successfully challenged for cause 'because of their stated opposition to capital punishment,' this being contrary to the Witherspoon decision. The question now before us is whether the Constitution of the United States, as interpreted in the Witherspoon case, is violated by the allowance of the State's challenges for cause shown in the present record.

The majority opinion in the Witherspoon case sharply defines the line drawn by that decision by both positive and negative statements. The Court affirmatively stated its holding as follows:

'Specifically, we hold that a sentence of death cannot be [275 N.C. 305] carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause Simply because they voiced General objections to the death penalty or expressed conscientious or religious Scruples against its infliction.' (Emphasis added.)

Speaking negatively, the Court said:

'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective

Page 251

jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty Or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it.' (Emphasis added.)

Again, in Footnote 21, the Court said:

'We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's Guilt.'

Prospective juror Corum stated specifically that his feeling against capital punishment was so strong that in no event could he ever bring out a verdict of guilty if he knew the penalty would be death.

Prospective juror Thompson stated that even if the evidence should convince him beyond a reasonable doubt of the guilt of the defendant he would have 'moral or religious scruples against bringing in a verdict of guilty in this particular case' if he 'knew that the death penalty would be invoked.' Prospective juror Best stated that even though, after hearing all of the evidence, he was satisfied beyond a reasonable doubt that the defendant is guilty he would have 'religious or moral scruples' which would prevent him 'from [275 N.C. 306] bringing out a verdict of 'guilty" if he knew the sentence would be death.

It is true that, at the time of the trial of this defendant in the superior court, G.S. § 14--17 provided that the punishment for murder in the first degree would be imprisonment for life if, at the time of rendering its verdict in open court, the jury should so recommend, and, under the decisions of this Court, it was the duty of the trial judge in a capital case to instruct the jury that it might, in its unbridled discretion, render its verdict of guilty with such recommendation, which would then be binding upon the court in the matter of sentence. State v. Carter, 243 N.C. 106, 89 S.E.2d 789; State v. McMillan, 233 N.C. 630, 65 S.E.2d 212. The jury actually selected to try the defendant in the present case was so instructed. Since the verdict of a jury must be unanimous, it necessarily follows that if only one juror had refused to consent to a verdict of guilty of murder in the first degree without a recommendation that the punishment be imprisonment for life, the death sentence could not be imposed upon the defendant. Consequently, prospective jurors Corum, Thompson and Best could each have served upon the jury in the present case and rendered a verdict of guilty without violating his stated moral or religious scruples against the death penalty.

It does not follow, however, that the sustaining of the State's challenges to these prospective jurors violated the rule of the Witherspoon case, supra. It is perfectly clear from...

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145 practice notes
  • State v. Kirkley, No. 155A81
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 3, 1983
    ...law in this State concerning a defendant's mental state at times before and after a crime is committed is set out in State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). Justice Lake, speaking for the Court, stated, that "the mental condition of the accused, both before and after the com......
  • State v. Cummings, No. 65A87
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 6, 1988
    ...(1975); State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975); State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Fowler, 270 N.C. 468, 155 S.E.2d 83 (1967); State v. McCoy, 236 N.C. 121, 71 S.E.2d 921 FRYE, Justice, dissen......
  • State v. Avery, No. 34
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 1, 1980
    ...Exclusion of prospective jurors when they express unequivocal opposition to imposition of the death penalty is proper. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State ......
  • State v. Sparks, No. 26
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 30, 1974
    ...(1972); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971); State v. Dickens, 278 N.C. 537, 180 S.E.2d 844 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 In view of the stipulation entered into by the parties, the seven jurors were properly excused for cause. This assignment of......
  • Request a trial to view additional results
145 cases
  • State v. Kirkley, No. 155A81
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 3, 1983
    ...law in this State concerning a defendant's mental state at times before and after a crime is committed is set out in State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). Justice Lake, speaking for the Court, stated, that "the mental condition of the accused, both before and after the com......
  • State v. Cummings, No. 65A87
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 6, 1988
    ...(1975); State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975); State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Fowler, 270 N.C. 468, 155 S.E.2d 83 (1967); State v. McCoy, 236 N.C. 121, 71 S.E.2d 921 FRYE, Justice, dissen......
  • State v. Avery, No. 34
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 1, 1980
    ...Exclusion of prospective jurors when they express unequivocal opposition to imposition of the death penalty is proper. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State ......
  • State v. Sparks, No. 26
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 30, 1974
    ...(1972); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971); State v. Dickens, 278 N.C. 537, 180 S.E.2d 844 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 In view of the stipulation entered into by the parties, the seven jurors were properly excused for cause. This assignment of......
  • Request a trial to view additional results

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