State v. Dockery

• Citation: 238 N.C. 222,77 S.E.2d 664
• Decision Date: 23 September 1953
• Docket Number: No. 5,5
• Court: North Carolina Supreme Court
• Parties: STATE, v. DOCKERY.

Page 664

77 S.E.2d 664

238 N.C. 222

STATE, v. DOCKERY.

No. 5

Supreme Court of North Carolina.

Sept. 23, 1953

O. L. Anderson, Murphy, and G. L. Houk, Franklin, for appellant.

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

DENNY, Justice.

The defendant excepts to and assigns as error the admission of a statement made by him in connection with a preliminary hearing of his son, Allen Dockery, before a Justice of the Peace, on March 1, 1953. His son having been bound over to the Superior Court, the defendant, Noah Dockery, made inquiry as to the amount of bond required for the release of his son pending his trial in the Superior Court. He was advised that the bond was $500. He then inquired if he could make it. He was informed that he could do so if he was worth $500 over and above exemptions. He said: 'I can't make it,' and mentioned some other Dockery. He was likewise informed that the same financial requirement applied to him. He then said: 'I won't make it and he can lay there and rot * * * they are trying to make outlaws out of us and there will be plenty of trouble over this.'

The statement was admitted for the purpose of showing malice, premeditation, and deliberation. This declaration, standing alone, at most, would constitute no more than a general threat or statement showing a malevolent spirit. But, such statement, in our opinion, when considered with other facts adduced in the trial below, was admissible as a threat. It is ordinarily the rule that a general threat to kill or injure some one, or a statement showing a general malevolent spirit, not shown to have any reference to the deceased, is not admissible on the question of malice, premeditation, or deliberation. However, such threat or statement becomes admissible when other evidence adduced in the trial gives individuality to it so that the jury may infer that such threat or statement referred to the deceased or to a class to which he belonged. 40 C.J.S., Homicide, § 206(c) page 1110, et seq.

'A threat to kill or injure someone, not definitely designated, is admissible in evidence, where other facts adduced give individuation to it; but general threats not shown to have any reference to the deceased cannot be proved.' 21 Cyc. 922; State v. Ellis, 101 N.C. 765, 7 S.E. 704; State v. Hunt, 128 N.C. 584, 38 S.E. 473; State v. Shouse, 166 N.C. 306, 81 S.E. 333; State v. Burton, 172 N.C. 939, 90 S.E. 561; State v. Casey, 201 N.C. 185, 159 S.E. 337: State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Bowser, 214 N.C. 249, 199 S.E. 31; State v. Hudson, 218 N.C. 219, 10 S.E.2d 730.

The record before us discloses that shortly after his arrest, the defendant made the following statement to one of the arresting officers: 'That he had been sore after his boy had been put in jail on Saturday and he said that the next one come (sic) after him was going to read a warrant to him or he wasn't going.' It is further disclosed by the defendant's confession, which was offered in evidence by the State, that the defendant saw the Sheriff through a window before he entered his home on March 3, 1953, and asked him what he wanted. The Sheriff replied that he had papers for him. The defendant said: 'Read them to me.' However, before the Sheriff reached the room where the defendant was, the defendant had gotten his gun, loaded it, and was standing holding the gun pointed toward the floor. The Sheriff opened the door and was apparently trying to get something out of his pocket with one hand and with the other hand still on the door knob, when the defendant aimed his gun and shot him. It is also stated in the confession that the Sheriff never threatened him; that he was always nice to him, but when he shot him he knew he was going to kill him or the Sheriff would kill him.

In State v. Burton, supra [172 N.C. 939, 90 S.E. 562], the defendant kept a small store in which he took his meals and slept. For several nights he had been annoyed by persons knocking at the door of his store and then running off. On the night of the homicide, about 10 o'clock, the deceased, a boy of 16 years of age, went with several other boys to the store and threw a piece of wood against the door and then ran off. The defendant shot at them, and killed the deceased. On the evening of the homicide the defendant was heard to say: 'I expect to kill the first G-d d--n man that taps on my door tonight.' The defendant was tried and convicted of murder in the second degree. He appealed and assigned as error the admission in evidence of the above statement. The court held it was admissible on the ground that it tended to show premeditation and deliberation and that the evidence offered by the State might have justified the jury in finding the defendant guilty of murder in the first degree.

Likewise, in State v. Hunt, supra [128 N. C. 584, 38 S.E. 474], the declaration of the defendant that he intended to get some whisky and go down to the party that night and 'raise some hell,' was held competent to show malice in a trial for second degree murder for a killing committed at the party. The Court said: 'It was not necessary to show special malice as to the deceased since he was one of the persons at the party, and embraced within the declaration of the defendant.'

In the case of State v. Ellis, supra, William and Amma Ellis, who were brothers, were sharpening their knives. William said, 'Somebody will be surprised tonight', and Amma said, 'Somebody will be surprised tonight.' That night, when the deceased returned to his home, Amma stabbed him. The above statement was held admissible as a threat.

'Threats made by a person against one of a class are admissible on a prosecution for committing a crime against another of the same class.' 20 Am.Jur., Evidence, section 347, page 322; State v. Baity, 180 N.C. 722, 105 S.E. 200; State v. Miller, 197 N.C. 445, 149 S.E. 590; State v. Casey, supra; State v. Payne, supra.

This assignment of error will not be upheld.

Another very serious question, however, is presented on this record. Counsel for private prosecution in making his argument to the jury, said: 'There is no such thing as life imprisonment in North Carolina today.'

This argument was made as a part of counsel's plea for a verdict of guilty of murder in the first degree without recommendation that punishment be life imprisonment. The reason advanced by counsel in support of this argument was that in cases where sentences are for life imprisonment, petitions are filed for commutation; that the commutations are allowed and persons thus sentenced to life imprisonment are finally paroled and allowed to go free.

Only one of the counsel for defendant was present in the courtroom at the time this argument was made and no objection was interposed to it at the time or later. However, the able trial judge, fearing that the prisoner's defense may have been prejudiced by the argument and his failure ex mero motu to instruct the jury not to consider it, directed that the facts with respect thereto be incorporated in the record and in the prisoner's statement of case on appeal to this Court.

it is generally recognized that wide latitude should be given to counsel in making their arguments to the jury. State v. Bowen, 230 N.C. 710, 55 S.E.2d 466; State v. Little, 228 N.C. 417, 45 S.E.2d 542. Even so, counsel may not go outside the record and inject into their arguments facts not included in the evidence. When this is done, it is the duty of the presiding judge, upon objection, to correct the transgression at the time of its occurrence or wait and do so when he comes to charge the jury. State v. Little, supra, and cited cases. Moreover, where objection is made to the argument of counsel and the court refuses to instruct the jury to disregard it, such argument, if deemed prejudicial, will be held for error if an exception is duly and timely entered thereto. State v. Tucker, 190 N.C. 708, 130 S.E. 720. McIntosh, North Carolina Practice and Procedure, ...