State v. Brunson, 31

• Decision Date: 15 May 1974
• Docket Number: No. 31,31
• Citation: 285 N.C. 295,204 S.E.2d 661
• Parties: STATE of North Carolina v. James Ernest BRUNSON.
• Court: North Carolina Supreme Court

Page 661

204 S.E.2d 661

285 N.C. 295

STATE of North Carolina v. James Ernest BRUNSON.

No. 31.

Supreme Court of North Carolina.

May 15, 1974.

Robert Morgan, Atty. Gen., by Thomas B. Wood, Asst. Atty. Gen., Raleigh, for the State.

Cherry & Grimes, by Sol G. Cherry, Fayetteville, for defendant appellant.

HIGGINS, Justice.

The first break in the solution of this case grew out of the interrogation of Robert Carmichael who was charged by warrant with the murder of Vanessa Lewis. The officers told Robert that James Brunson was pointing a finger at him. Robert then told the officers the story in substance as above recited. The interrogation of James Brunson brought his denial of any implication in or knowledge of the crimes committed against Vanessa Lewis. He claimed he was playing basketball and went from the basketball court to his classes at a time when it would have been impossible for him to have been present at the time the crimes were committed. James Carmichael and Charles Davis corroborated his story. They were testifying one year after the events. However, each said he remembered because he heard of Vanessa's death near the school on the day it occurred.

In this setting, the school attendance record of James Brunson on February 22, 1972, would be of material benefit to the defendant if it disclosed that on that day he was present at the school and not tardy. The discussion between the court and Mrs. West about the school attendance record discloses that she and the trial judge were communicating on different wave lengths. The school record showed a five day week. Hence, in order for the witness to identify February 22, 1972, on the school calendar, it was necessary for her to refer to the regular monthly calendar for that month. The first school day in the month of February, 1972, began on Tuesday. Omitting the Saturdays and Sundays (non-school days) the 22nd day of February was the 16th school day of that month.

The monthly school attendance record for each pupil was prepared by the school authorities and sent to the school at the beginning of the month. This record contained a space for each school day (omitting Saturdays, Sundays and school holidays) to be filed in indicating whether the pupil was present, tardy, or absent. If the student was present and on time, the space on the record was left unmarked; if tardy or absent, the proper mark so indicating was entered in the space for that day. A clean record indicated presence on time. To correlate the school days as shown on the attendance record with the regular calendar days, required the examination of both the calendar and the attendance record. The comparison disclosed that February 22, 1972, was the sixteenth regular school day and the space for that day would indicate whether the defendant was present, tardy, or absent. If, however, as seems to have occurred in this case, the first Actual school day in February, 1972, as explained by Mrs. West, was February 8th (indicating a midterm vacation of one week), then February 22nd would be the eleventh school day for the month.

Mrs. West testified the school attendance record for February, 1972, began on the 8th, indicating the first week was the midterm break. In that event, relating the school record to the regular calendar, February 22nd would be the eleventh school day; so that the record of James Brunson for February 22nd, assuming the week of vacation, would be contained in the eleventh space on the school record.

The trial judge excluded the school record because it was necessary for Mrs. West to check the regular calendar in order to relate the attendance record to that date. The court refused to permit Mrs. West to refer to the regular calendar or to testify to the jury about the record. The court ruled: 'The State's objection is sustained as to this witness,' the objection being that Mrs. West sought to correlate the school attendance record with the calendar.

The law requires the courts to take judicial notice of the days, weeks, and months of the calendar. 'The courts take judicial notice of the day of the week upon which any day of the month falls. . . . It is generally held that the courts are bound to take judicial notice of what days are legal holidays.' 29 Am.Jur.2d, Evidence, § 99, 130. Smith v. Kinston, 249 N.C. 160, 105 S.E.2d 648; Dowdy v. R.R., 237 N.C. 519, 75 S.E.2d 639; State v. Anderson, 228 N.C. 720, 47 S.E.2d 1; State v. Vick, 213 N.C. 235, 195 S.E. 769; 123 A.L.R. 1242.

'Courts will judicially notice the things properly belonging to an almanac. The courts take judicial notice of the calendar and of the periods within the calendar. They take judicial notice of the computation of time, the subdivision of the year into months, weeks, and days, the days of the week, the order of succeeding days of the week, the number of days in a month, the coincidence of days of the week with days of the month, and of the days of the month with those of the year.' 31A C.J.S. Evidence § 100, pp. 148--149. See also State v. Anderson, supra.

The defendant's school attendance record, a photostat of which...