State v. Clanton, 29

• Decision Date: 14 April 1971
• Docket Number: No. 29,29
• Citation: 180 S.E.2d 5,278 N.C. 502
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Odell Delano CLANTON, Sr.

Page 5

180 S.E.2d 5

278 N.C. 502

STATE of North Carolina v. Odell Delano CLANTON, Sr.

No. 29.

Supreme Court of North Carolina.

April 14, 1971.

Robert Morgan, Atty. Gen., by Henry T. Rosser, Asst. Atty. Gen., for the State.

Herman L. Taylor, Greensboro, for defendant appellant.

HIGGINS, Justice.

The defendant contends the trial judge committed prejudicial error (1) by permitting the solicitor to elicit evidence from two teen-age daughters of the defendant and the deceased by means of leading questions; (2) by the manner and tone of his voice in overruling defense counsel's objections to the leading questions; and (3) by overruling defendant's motion to dismiss at the close of the evidence.

The exception to the solicitor's leading questions cannot be sustained. The witnesses were the teen-age daughters of the defendant who was charged with and was on trial for the killing of his wife, their mother. The record clearly discloses their reluctance to reveal in court the numerous differences, physical clashes and fights that had taken place between their father and mother during the past two years, including his threats to kill her. Permitting these leading questions, under the circumstances disclosed, was a matter within the sound discretion of the trial judge. His ruling will not be reviewed on appeal, absent a showing of abuse of discretion. State v. Pearson, 258 N.C. 188, 128 S.E.2d 251; State v. Beatty, 226 N.C. 765, 40 S.E.2d 357; State v. Harris, 222 N.C. 157, 22 S.E.2d 229. Abuse of discretion is not disclosed.

The defendant contends the trial judge, by his manner and angry tone of voice in ruling on defendant's objections to leading questions, prejudiced the defendant's case before the jury. The words of the judge are in the record. His manner and tone of voice are not disclosed. Defense counsel, however, has filed in this court an affidavit in which he attempts to describe the manner in which the judge ruled on his objections. The affidavit is attached to, but not certified or agreed to, as a part of the case on appeal and cannot be considered by this court in passing on the merits of the appeal. The record does not sustain this assignment.

The defendant's major challenge is to the sufficiency of the evidence to survive the motion to dismiss. The evidence is circumstantial. To survive a motion to dismiss, or for a directed verdict of not guilty, or for judgment as of nonsuit (used interchangeably in criminal prosecutions) the evidence must be sufficient to permit a legitimate inference the defendant committed every essential element of the crime charged. (In this case, manslaughter.) The rule is for the guidance of the trial judge in passing on the motion to dismiss. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431; State v. Dawson, 272 N.C. 535, 159 S.E.2d 1; State v. Horton, 275 N.C. 651, 170 S.E.2d 466. The judge must instruct the jury, however, that in order to permit a verdict of guilty, the jury must find from the evidence beyond a reasonable doubt that the defendant committed every essential element of the offense before the jury may return a verdict of guilty of that offense. In this case we may assume the trial judge gave the required instructions since the defendant did not include the charge in the case on appeal. This court, therefore, is confronted with the question whether the record discloses evidence sufficient to support a legitimate finding the defendant committed all the essential elements of manslaughter.

The State's evidence disclosed that the defendant, Odell Delano Clanton, Sr. and his wife, Mary Florence Clanton, on and prior to November 27, 1969, lived in the City of Greensboro. They argued frequently; 'they fought a lot'; the defendant on numerous occasions had assaulted his wife, once by trying to run over her with an automobile; and he had made threats to kill her. The elder daughter, Sharon, age 16, as a State's witness testified that she had seen her father and mother fight often. On the evening of November 26, her mother, a school teacher, came home from the grocery store about 8:30. A dispute began. '* * * (S)he (the mother) didn't say anything. She just went back out * * * she came home * * * about ten o'clock the next morning (November 27).' The witness and her younger sister soon thereafter went to the home of an aunt, leaving the father and mother at home quarreling.

About 3:45 on the afternoon of the 27th the defendant appeared at the home of...