State v. Dawson

• Decision Date: 14 April 1971
• Docket Number: No. 73,73
• Citation: 180 S.E.2d 140,278 N.C. 351
• Parties: STATE of North Carolina v. Edward A. DAWSON.
• Court: North Carolina Supreme Court

Page 140

180 S.E.2d 140

278 N.C. 351

STATE of North Carolina v. Edward A. DAWSON.

No. 73.

Supreme Court of North Carolina.

April 14, 1971.

Carl E. Gaddy, Jr., Raleigh, for defendant appellant.

Robert Morgan, Atty. Gen., by Thomas B. Wood, Asst. Atty. Gen., for plaintiff-appellee.

HUSKINS, Justice:

Defendant's first thirty-nine exceptions and assignments of error based thereon are addressed to the admission of evidence. Those which merit discussion will be considered in numerical order.

Defendant initially asserts that the trial court erred in allowing the witness Donald Brake to testify that when defendant, at the Hamburger Shop shortly after the fight, told him he had kicked Jimmie Collie so hard he had sprained his ankle, he 'seemed to be joking about it.' Defendant claims the witness was thus permitted to state a conclusion which was irrelevant and highly prejudicial in that it indicated an attitude of unconcern on defendant's part. No authority is cited and no reason stated in support of this assignment save the bare assertion that it was irrelevant and prejudicial. For that reason the assignment is deemed abandoned under Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783 at 810. Nevertheless, admission of the evidence was not error. The statement attributed to defendant was highly relevant and material, and defendant's jocular mode of expression was admissible as a shorthand statement of fact. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968); State v. Gray, 180 N.C. 697, 104 S.E. 647 (1920); Stansbury, N.C. Evidence (2d Ed., 1963) § 125. This assignment has no merit.

Assignments of Error 2 through 8 relate to the introduction of photographs of the deceased to illustrate the testimony of various witnesses. Viewed in context and in the setting at the trial, it appears that in each instance the familiarity of the testifying witness with deceased was established, and the accuracy of the photograph as a true likeness of Jimmie Collie was shown. They were offered and admitted over defendant's general objection. When a general objection is interposed and overruled, it will not be considered reversible error if the evidence is competent for any purpose. Rule 21, Rules of Practice in the Supreme Court, 254 N.C. 783 at 803; State v. Ham, 224 N.C. 128, 29 S.E.2d 449 (1944). Even so, the trial judge invariably instructed the jury to consider each photograph for illustrative purposes only and not as substantive evidence. They were competent for the limited purpose stated and their admission was not error. State v. Casper, 256 N.C. 99, 122 S.E.2d 805 (1961), cert. den., 376 U.S. 927, 84 S.Ct. 691, 11 L.Ed.2d 622 (1964).

Defendant insists, however, that the State sought to use the photographs to establish the Corpus delicti; that photographs may not be used for that purpose, and therefore the Corpus delicti was never shown by competent evidence.

'The phrase 'corpus delicti' means literally the body of the transgression charged, the essence of the crime or offense committed. To establish the corpus delicti it is necessary to show the commission of a particular act and its commission by unlawful means.' 1 Wharton's Criminal Law and Procedure (Anderson Ed., 1957), § 66. Strong and cogent circumstantial evidence may be sufficient to prove the Corpus delicti where no direct evidence is available. 'The Corpus delicti, in cases such as we are considering, is made up of two things: first, certain facts forming its basis, and, secondly, the existence of criminal agency as the cause of them.' State v. Williams, 52 N.C. 446, 78 Am.Dec. 248 (1860). See also State v. Jones, 249 N.C. 134, 105 S.E.2d 513 (1958); State v. Cope, 240 N.C. 244, 81 S.E.2d 773 (1954); State v. Cuthrell, 233 N.C. 274, 63 S.E.2d 549 (1951). In homicide cases the requirements sufficient to establish the Corpus delicti are more specific: (1) There must be a corpse, or circumstantial evidence so strong and cogent that there can be no doubt of the death, State v. Williams, supra; and (2) the criminal agency must be shown. State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 31 A.L.R.2d 682 (1952). 'The independent evidence must tend to point to some reason for the loss of life other than natural causes, suicide or accident.' Rollin M. Perkins, The Corpus Delicti of Murder, 48 Va.L.Rev. 173 (1962).

Here, defendant argues that the State failed to show by competent evidence that the body upon which the autopsy was performed was the body of Jimmie Collie because the photograph exhibited to the doctor was not competent as substantive evidence and was therefore inadmissible for the purpose of proving Corpus delicti. This contention is not supported by the decided cases.

Photographs have been held properly admitted, with appropriate limiting instructions, to illustrate testimony establishing the Corpus delicti in North Carolina and other jurisdictions. State v. Gardner, 228 N.C. 567, 46 S.E.2d 824 (1948); State v. Miller, 219 N.C. 514, 14 S.E.2d 522 (1941); Hines v. State, 260 Ala. 668, 72 So.2d 296 (1954); Potts v. People, 114 Colo. 253, 158 P.2d 739, 159 A.L.R. 1410 (1945); State v. Myers, 7 N.J. 465, 81 A.2d 710, 25 A.L.R.2d 1171 (1951); Annotation, Admissibility of Photograph of Corpse in Prosecution for Homicide or Civil Action for Causing Death, 73 A.L.R.2d 769 (1960) at § 14; 40 Am.Jur.2d, Homicide, § 418.

This is in accord with the general rule that 'photographs are competent to be used by a witness to explain or to illustrate anything it is competent for him to describe in words.' State v. Gardner, supra. The photographs must, of course, be properly limited and authenticated, and must be relevant. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969).

Applying these principles to the facts in this case, it appears that Dr. Haberyan, although not previously acquainted with Jimmie Collie, testified that the photograph exhibited to him was a fair and accurate representation of the body upon which he performed an autopsy, and expressed his expert opinion that a kick in the head inflicted by a leather shoe could have caused death. The witness Dennis Eason, who saw Jimmie Collie at the fight in Aycock Park, said he recognized the same photograph which had been shown to Dr. Haberyan as a fair likeness of Jimmie Collie on the night he was killed. The father of the deceased identified the same body as that of his son. Thus there was no failure to connect the subject of the autopsy to the deceased named in the bill of indictment. The assignments of error based on such contention are overruled.

Manifestly, there was plenary evidence in proof of the second element of the Corpus delicti. Several witnesses testified that Jimmie Collie was kicked in the head by defendant Dawson following which blood was seen running from the victim's mouth, ears and nose. These witnesses observed that the victim had no pulse and was not breathing. Dr. Haberyan testified essentially that death was caused by a skull fracture behind the right ear and near the base of the brain, compressing vital centers controlling the heart and lungs, and that the fracture was caused by a blow inflicted by a blunt instrumentality such as a cement curbing or a leather shoe. There is no evidence in the record that when Jimmie Collie fell from the hood of the car the back of his head struck the curb. To the contrary, the testimony shows that he fell from the hood of the car and landed face down. This points to the conclusion that the blow which caused death was inflicted by Edward Dawson's shoe and greatly weakens the suggestion that Collie's death was attributable to other causes. It was a question for the jury. Defendant's motion for nonsuit was properly denied.

Defendant's Exceptions and Assignments of Error Nos. 9 and 13 through 39 concern the admission of testimony involving a fracas at the gymnasium of Benvenue School on the night of November 7, 1969, at a party given by the coach for his football players. These assignments therefore will be grouped for discussion.

Defendant had testified that due to injuries received when he was thrown from a horse and when he was involved in an automobile accident on November 2, 1969, his physical condition was such that he was unable to kick Jimmie Collie as alleged by the State. On cross examination the solicitor referred to defendant's professed physical disability and asked: 'Didn't keep you from getting into a fight with the coach of the football team at Benvenue School, did it?' Defendant's objection and motion to strike were overruled. Later, over the continued objections of defendant, the State was permitted to elicit rebuttal testimony from Coach Hendricks and his wife to the effect that Edward Dawson was neither a student nor a football player at Benvenue School; that defendant came to the party uninvited and was requested to leave; that he left but returned in a half hour accompanied by fifteen other boys who marched into the gym and assaulted the coach; that defendant pressed the arm cast he was wearing against Coach Hendricks' neck, struck the coach, was strong and active and had no apparent disability save the cast on his arm. This evidence was offered and received for the sole purpose of showing the physical condition of the defendant at that time and to impeach defendant's testimony that on the night of November 22 when Jimmie Collie was killed defendant was so disabled by injuries that he could not have struck or kicked anyone. The jury was specifically instructed to consider the evidence only for that purpose.

The evidence was competent for the limited purpose for which it was admitted. Under the North Carolina rule of wide-open cross examination, so called because the scope of inquiry is not confined to matters brought out on direct examination, questions designed to impeach the witness if relevant to the controversy, may cover a wide range and are permissible within the discretion of the court. State v. Penley, ...