State v. Buchanan

Decision Date03 January 1940
Docket Number723.
Citation6 S.E.2d 521,216 N.C. 709
PartiesSTATE v. BUCHANAN.
CourtNorth Carolina Supreme Court

Charge Murder.

Verdict Guilty of murder in the first degree.

Sentence Death by asphyxiation.

John D. Slawter and Richmond Rucker, both of Winston-Salem, for defendant, appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State, appellee.

SEAWELL Justice.

The defendant was charged with the murder of his wife. The evidence was ample to sustain a verdict of murder in the first degree. Included in that evidence was a purported confession of the defendant, to the introduction of which objection was made. The exception cannot be sustained, since the evidence of the voluntariness of the confession is well within the standards heretofore approved by the court.

One objection by the defendant, however, raises a question of such a serious nature as to merit further consideration.

The defendant was tried, convicted, and sentenced to death for this offense before, appealed, and a new trial was granted. The case is reported in 216 N.C. at page 34, 3 S.E.2d 273.

Upon the second trial, now under review, the judge, over objection of the defendant, permitted the solicitor to read the following excerpts from the opinion in that case, with comment thereupon, as follows:

"The Solicitor. This is by Chief Justice Stacy. 'Whereupon the court stated in the presence of the jury: "He swore both ways". To this the defendant noted an exception. The exception is well taken. The effect of the observation was to disparage or to discredit the defendant's testimony in the eyes of the jury. The remark, which, of course, was an inadvertence, is just one of those slips, or casualties, which, now and then, befalls the most circumspect in the trial of causes on the circuit.

"'Again, the following excerpt taken from the charge forms the basis of one of defendant's exceptive assignments of error: "A person who has a good character is not as apt to commit the offense as a person of bad character, and a person of good character is more apt to tell the truth about the matter than a person of bad character." These exceptions are well taken.'

"I do that, Gentlemen of the Jury, because I want you to know that these exceptions will not arise in this case because, of course, I take it His Honor is not going to make a statement which the Supreme Court says is a statement of opinion. The law says the Judge may not express an opinion, and I argue the Supreme Court said there His Honor, who tried the case, another Judge, said: 'He swore both ways.' They said that is a statement of opinion. That won't arise in this trial. I want that understood in this case. That is not going to arise."

Reference to the opinion from which this quotation is made will show that the part read by the solicitor was immediately preceded by the following: "On the trial the defendant was asked by the solicitor if the money found by the officers when he was arrested came from the sale of liquor. He answered in the negative. The solicitor then inquired: 'You were not working. Where did you get it?' Counsel for defendant objected, with the remark, 'He did not say he was not engaged."' We think the full effect of the objection applied in the present case can be better understood by taking these two excerpts together.

While the case before was sent back for retrial principally upon the ground that the remark of the judge at the time,-- "He swore both ways",--was calculated to discredit the defendant's testimony in the eyes of the jury, it has another significance at this time, since the defendant did not go upon the stand at his more recent trial. The jury might...

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