State v. Bazemore

• Decision Date: 16 March 1927
• Docket Number: (No. 139.)
• Citation: 137 S.E. 172
• Parties: STATE. v. BAZEMORE.
• Court: North Carolina Supreme Court

(193 N.C. 336)

137 S.E. 172

STATE.

v.BAZEMORE.

(No. 139.)

Supreme Court of North Carolina.

March 16, 1927.

Appeal from Superior Court, Greene County; Stack, Judge.

George Frank Bazemore was convicted of murder, and he appeals. New trial.

Criminal prosecution tried upon an indictment charging the defendant with a capital felony, to wit, murder in the first degree. From an adverse verdict and sentence of death entered thereon, the defendant appeals, assigning errors.

J. Paul Frizzelle, of Snow Hill, for appellant.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY, C. J. It appears that on November 5, 1926, Gordon Yelverton, a young white man, started from his home in Martin county with a truck load of tobacco to be sold on the Wilson market. The prisoner, a colored man, was with him on the truck. Yelverton was shot in the back of the head and killed just inside the Greene county line on the Greenville-Wilson highway. His body was found in a clump of woods a short distance from the road. The prisoner proceeded with the truck of tobacco and sold the same as his own on the Farmville market. He was arrested three days later and placed in the Wilson county jail for safe-keeping. While there, a number of witnesses went to the jail to identify the prisoner.

W. P. Daniels, over objection of the prisoner, testified as follows:

"I am chief of police in Williamston. I was called on to go to Wilson to identify George Frank Bazemore. I was accompanied by Sheriff Roberson and Mr. J. W. Hardy. I saw the defendant there. He was among others, I suppose 12 or 15, whose ages ranged from 18 to 35 years. The sheriff called them out. Mr. Hardy said that when he was coming over to Wilson he didn't know whether he could identify the negro who had come into his store on the morning of the 5th November with the white boy who was driving the truck or not, except that he had on a light hat. Speaking to the defendant, I said, 'George, go get your hat, ' and he went and brought his hat. Mr. Hardy then said, 'That looks like the negro, but he hasn't got the hat fixed the same way.' He was in the habit of wearing it pushed in all 'round, and I said, 'George, fix your hat like you usually wear it, ' and he did it. Then Mr. Hardy said, 'That's him, I would swear to him anywhere in the world.'"

This evidence was competent. State v. Godette, 188 N. C. 503, 125 S. E. 24; State v. Graham, 74 N. C. 646, 21 Am. Rep. 493. J. W. Hardy had previously testified to the same state of facts.

The prisoner also insists upon his exception directed to the refusal of the court to grant his motion, duly made under C. S. 4643, for judgment as of nonsuit. The evidence, while largely circumstantial, was sufficient to carry the case to the Jury and to warrant a conviction of murder in the first degree. State v. Melton, 187 N. C. 481, 122 S. E. 17; State v. Matthews, 66 N. C. 106.

We regret that this opinion cannot be closed here, for no error seems to have been committed on the trial of the cause prior to the rendition of the verdict. An irregularity, however, appears on the face of the record which makes it necessary to remand the casefor a new trial. In the record as first certified to this court, it is stated that the jury "for their verdict return into open court and say, and each for himself saith, that the defendant, George Prank Bazemore, is guilty of the felony and murder whereof he stands charged." Upon the verdict a sentence of death was entered. It was said in State v. Truesdale, 125 N. C. 696, 34 S. E. 646, that since the Act of 1893, now C. S. 4200 and 4642, dividing murder into two degrees, first and second, a verdict which fails specifically to find the prisoner guilty of murder in the first degree will not support a death sentence. And to like effect is the decision in State v. Jefferson, 125 N. C. 712, 34 S. E. 648. See, also, State v. Murphy, 157 N. C. 614, 72 S. E. 1075, and State v. Ross, 193 N. C. 25, 136 S. E. 193. It was specified in the Act of 1S93 that no alteration or modification of the then existing form of indictment for murder should be required, but that "the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree."

Thinking that an error had probably crept into the record in making up the transcript on appeal, we directed a certiorari to the clerk, requiring another certificate of the verdict as taken and recorded in the superior court of Greene county. In response, the clerk certifies that the following appears upon the minutes of the court:

"After hearing the evidence, both for the state and the defendant, the argument of the solicitor and counsel for the defendant, and his honor's charge, the jury repaired to their room for deliberation, and the court takes a recess until 9:30 o'clock Thursday morning. The court leaves instruction that, if the jury agree, the clerk of the court shall take the verdict, conditioned on the solicitor and the defendant and his counsel being present in court at the time. At 8:10 o'clock the jury return into court, each juror answers to his name when called by the clerk, and when asked by the clerk, 'Have you all agreed upon your verdict?' the jury respond: 'We have.' The clerk asks: 'Who shall speak for you?' The jury answer: 'J. M. Albritton.' Then the clerk addressed the prisoner, George Prank Bazemore: 'Hold up your right hand.' The clerk said to the jury: 'Gentlemen of the jury, look upon the prisoner. What say you? Is he guilty of the felony and murder whereof he stands indicted or not guilty?' They say: 'Guilty of murder in the first degree.' The clerk then said to the jury: 'Harken to your verdict as the court recordeth. You say that George Prank Bazemore is guilty of the felony and murder whereof he stands charged. So say you all.' The defendant and the defendant's counsel were present in court."

It is observed, in passing, but no point is made of the discrepancy, that when the jury were commanded to harken to their verdict as the court recordeth, the expression "guilty of the felony and murder whereof he stands charged" was substituted for "guilty of murder in the first degree, " as used by the foreman....