State v. Fogleman

• Decision Date: 05 November 1913
• Citation: 79 S.E. 879,164 N.C. 458
• Parties: STATE v. FOGLEMAN.
• Court: North Carolina Supreme Court

79 S.E. 879

164 N.C. 458

STATE v. FOGLEMAN.

Supreme Court of North Carolina

November 5, 1913

Appeal from Superior Court, Guilford County; Peebles, Judge.

John Fogleman was convicted, and appeals. Affirmed.

It is within the discretion of the trial judge to allow a witness previously examined to be recalled.

John A Barringer and W. P. Bynum, both of Greensboro, for appellant.

The Attorney General, for the State.

CLARK C.J.

The defendant was convicted of murder in the second degree. The homicide occurred in Greensboro on the night of April 9 1913. The deceased and the prisoner had been drinking and just before the homicide were arguing and tussling. The deceased was crossing the street near an electric light, the prisoner following closely behind, when, as several testified, the latter, taking a pistol from his right hind pocket, fired it at the deceased, who walked on a few steps and fell. This the prisoner denied. The wound was on the left side of the head near the back. The prisoner was engaged in business in the city, and the officers, being unable to find him the next morning, went out to his father's house about 6 miles from town and found him in the woods about 300 or 400 yards from the house. He had a bedquilt and overcoat with him and was getting up from the quilt. This was between 11 and 12 o'clock. The prisoner testified that he was near the place of the homicide at the time of the shooting and heard the shot but denied that he fired it. He admitted that he had been indicted several times for retailing; that the shooting took place about 10 days after the last trial, and a number of such cases were still pending against him. There was evidence tending to show that the deceased was supposed to be a detective.

The first exception is that, after a witness had been examined by the state and cross-examined and then again examined by the state and stood aside, the counsel for the prisoner asked permission to examine the witness on matters which had already been gone into by counsel on both sides, and the court "declined to allow the question as a matter of discretion." This was in the discretion of the court. State v. Groves, 119 N.C. 822, 25 S.E. 819; State v. Jimmerson, 118 N.C. 1173, 24 N.E. 494; Sutton v. Walters, 118 N.C. 495, 24 S.E. 357; Olive v. Olive, 95 N.C. 486; Pain v. Pain, 80 N.C. 322. In the latest case (In re Abee, 146 N.C. 273, 59 S.E. 700) the court said that the recalling of witnesses for further examination is a matter resting in the discretion of the trial judge and is not subject to review.

The prisoner excepted to the following charge: "The prisoner's mother and father had a perfect right to come in the courthouse and manifest an interest in his defense. But you have no right in making up your verdict to take them into consideration at all." This, however, must be read in connection with the context.

The court just before this had said: "The wife of the deceased has been before you as an exhibit, and the mother and father of the prisoner have been before you all they could, and appeals have been made to you to take into consideration their feelings in making out your verdict, and the effect it would have upon them. Mrs. Tucker (the wife of the deceased) had a perfect right to come into the courthouse and manifest an interest in this prosecution." And, just after the paragraph above excepted to, the court said "You are sworn to decide this case according to the evidence and not according to sympathy or feeling for anybody at all." The court was not referring to the testimony which had been given by the father and mother of the prisoner but was properly warning the jury against being influenced in their verdict by sympathy for either side. As Chief Justice Merrimon said: The "judge is not a mere moderator but he is an integral and essential part of the court and should see that justice is impartially administered."

Exception 3 is because the judge stated one of the contentions of the prisoner's counsel. It does not appear from the case on appeal that this was an incorrect statement or that it prejudiced the prisoner. It has been held that, if the court does not correctly state such contention, it is the duty of counsel at the time to call the matter to the attention of the court or it will not be considered on appeal. Jeffress v. Railroad, 158 N.C. 215, 73 S.E. 1013; State v. Cox, 153 N.C. 638, 69 S.E. 419.

Exception 4 is to the following charge: "It is not allowable, when one man is charged with a crime, to show by circumstances or insinuations that some one else killed deceased." The charge was correct. It is not a question of some one else killing him but whether the prisoner killed the deceased or not.

In State v. Lambert, 93 N.C. 623, it was held that evidence cannot be admitted to show that a third party had malice to the deceased, a motive to take his life, opportunity to do so, and had threatened to do so. In that case State v. Davis, 77 N.C. 483, to the same effect is quoted.

The prisoner further excepts because the court charged the jury "When you come to consider the testimony of his father and mother, it is your duty to consider their relationship to him, their partiality to him, and the effect that it would have on them to have him convicted, and then ascertain as best you can what influence that would have upon the truthfulness of their testimony, and then give to the testimony of each one that weight and effect which under all the circumstances you think he is entitled." We find no error in this instruction. It calls fairly to the attention of the jury the attendant circumstances which might bias their testimony and left the jury to judge what weight and effect they...