State v. Bowen

• Decision Date: 12 October 1949
• Docket Number: 145
• Citation: 55 S.E.2d 466,230 N.C. 710
• Parties: STATE v. BOWEN et al.
• Court: North Carolina Supreme Court

55 S.E.2d 466

230 N.C. 710

STATE v. BOWEN et al.

No. 145

Supreme Court of North Carolina

October 12, 1949

Atty Gen. Harry M. McMullan and Asst. Atty. Gen. T. W. Brutton for the State.

Cameron S. Weeks, Tarboro, for defendants.

DENNY Justice.

The defendants were tried under a bill of indictment charging larceny and receiving. The jury returned a verdict of guilty of receiving stolen goods, knowing them to have been stolen as charged in the second count of the bill of indictment. From this verdict and the judgment imposed pursuant thereto, the defendants appeal and assign error.

It is stated in the record that in the course of the Solicitor's argument to the jury, he referrred to the defendants, Hilbert Bowen and James McKeel, as 'these two thieves', to which remark counsel for the defendants interrupted the Solicitor's argument and objected to the reference to the defendants as 'these two thieves'. Whereupon the Solicitor reiterated his remarks, stating 'That's exactly what I called them, two thieves ' The objection to the reference to the defendants as thieves and the instruction requested, namely, that the jury disregard such references were overruled. This ruling is assigned as error.

Counsel must be allowed wide latitude in the argument of hotly contested cases. But what is an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge, and we 'will not review his discretion, unless the impropriety of counsel was gross and well calculated to prejudice the jury,' State v. Baker, 69 N.C. 147; State v. Bryan, 89 N.C. 531; Goodman v. Sapp, 102 N.C. 477, 9 S.E. 483; State v. Tyson, 133 N.C. 692, 45 S.E. 838; Caton v. Toler, 160 N.C. 104, 75 S.E. 929; Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525. Counsel should not go beyond the testimony in a case or characterize a defendant in a manner calculated to prejudice the jury against him. McLamb v. Wilmington & W. R. Co., 122 N.C. 862, 29 S.E. 894, 896; Perry v. Western North Carolina R. Co., 128 N.C. 471, 39 S.E. 27; Hopkins v. Hopkins, 132 N.C. 25, 43 S.E. 506; State v. Howley, 220 N.C. 113, 16 S.E.2d 705; State v. Little, 228 N.C. 417, 45 S.E.2d 542; State v. Hawley, 229 N.C. 167, 48 S.E.2d 35; State v. Correll, 229 N.C. 640, 50 S.E.2d 717, 719.

While we do not approve the language used by the Solicitor in the instant case, we do not think its use, in the light of the facts disclosed by the record, constitutes such prejudicial error as to justify a new trial. It is true that characterization is not argument, and a prosecuting attorney should not be permitted to characterize an accused or his conduct by terms of opprobrium which are not supported by the evidence. 23 C.J.S., Criminal Law, s 1106, page 582. Evidently the Solicitor felt that the State had introduced sufficient evidence to show beyond a reasonable doubt that the defendants were guilty of larceny. Even so, his argument might well have been couched in less objectionable and more dignified language, which no doubt, would have been equally as effective.

In the case of State v. Correll, supra, where the defendant was on trial for murder, a private prosecutor characterized the defendant as 'a small-time racketeering gangster'. Winborne, J., in speaking for the Court, said: 'The court very properly sustained objection to the remarks of counsel characterizing defendant as 'a smalltime racketeering gangster'. Webster defines racketeer as 'One who singly or in combination with others extorts money or advantages by threats of violence or of unlawful interference with business', and a gangster as 'A member of a gang of roughs, hireling criminals, thieves, or the like'. Characterization is not argument. State v Tucker, 190 N.C. 708, 130 S.E. 720. There is nothing in the record to justify such abuse of defendant personally, * * * and it was highly objectionable. A severe ...