State v. Foster

• Decision Date: 06 December 1916
• Docket Number: 470.
• Citation: 90 S.E. 785,172 N.C. 960
• Parties: STATE v. FOSTER.
• Court: North Carolina Supreme Court

90 S.E. 785

172 N.C. 960

STATE v. FOSTER.

No. 470.

Supreme Court of North Carolina

December 6, 1916

Appeal from Superior Court, Polk County; Lane, Judge.

Frank Foster was convicted of murder in the first degree, and he appeals. No error.

The prisoner and Ed Bridgeman were indicted for the murder of John Hayes on December 25, 1915. The jury convicted the prisoner of murder in the first degree, and he has appealed from the judgment upon the verdict. Ed Bridgeman was convicted of murder in the second degree, but the verdict was set aside by the court.

Jurors who admit having formed opinions, but who express themselves able to render a fair verdict on the evidence, guided by the instructions, are competent.

Spainhour & Mull, of Morganton, and A. Y. Arledge, of Columbus, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

WALKER J.

There are many exceptions in the record, but, when they are classified and each assigned to its proper group, there are really very few. We will consider the assignments of error in their numerical order:

First. The challenge to a juror because he had formed and expressed an opinion was fully met by the ruling of the court, upon evidence, that he was fair and impartial. He stated that notwithstanding the opinion he had formed, he could hear the case and render a verdict according to the law and the evidence. The exception therefore falls within the principle as stated in State v. Banner, 149 N.C. 519, 63 S.E 84, and is overruled. See, also, State v. DeGraff, 113 N.C. 688, 18 S.E. 507; State v. Green, 95 N.C 611; State v. Kilgore, 93 N.C. 533. It does not clearly appear that the challenges of the prisoners had been exhausted. Gregory's Supplement, § 3263; State v. Banner, supra.

Second. This assignment is not based upon any exception, and cannot, therefore, be considered. Worley v. Logging Co., 157 N.C. 490, 73 S.E. 107; McLeod v. Gooch, 162 N.C. 122, 78 S.E. 4; State v. Freeze, 170 N.C. 710, 86 S.E. 1000. It does not appear, though, that this prisoner excepted individually to the evidence of Mrs. Hulda Hayes, nor do we see that it was prejudicial to him. Besides, there was no serious denial, and could not be, that this prisoner committed the homicide, whether excusably or not. The exception, if it may be regarded as properly taken, in apt time, extended to a mass of evidence, some of which was competent upon certain phases of the case. It should have specified the objectionable testimony. Railroad Co. v. Manufacturing Co., 169 N.C. 156, 85 S.E. 390, L. R. A. 1916A, 1090; State v. English, 164 N.C. 508, 80 S.E. 72; Wilson v. Lumber Co., 131 N.C. 163, 42 S.E. 565; State v. Ledford, 133 N.C. 714, 45 S.E. 944.

Third. The evidence covered by this and the next six exceptions, which will include the ninth, was competent in part, and each of the exceptions is therefore amenable to the rule we have just stated when passing upon the second exception. The evidence was either competent as to both prisoners or as to Ed Bridgeman, and the exceptions are made jointly. But upon a review of all the evidence embraced by these exceptions we do not see that it was prejudicial to the prisoner. It may also be said that there was sufficient evidence to show that the prisoner and Ed Bridgeman were acting together or in concert, and when there is such concert of action, or common design, the declarations or conduct of one of the parties, in furtherance of their purpose, is competent against the other conspirator. State v. Anderson, 92 N.C. 733; State v. Turner, 119 N.C. 841, 848, 25 S.E. 810. It was held in State v. Anderson, supra, as appears by the headnotes:

"While it is a general rule of evidence that the acts and declarations of a person in the absence of the prisoner are not admissible in evidence against him, yet there are exceptions, one of which is in case of a conspiracy to do an unlawful act, when the acts and declarations of conspirators, in furtherance of the common purpose, are competent, although made in the absence of the others. The least degree of consent or collusion between parties to an illegal transaction makes the act of one the act of the others."

A large part of the testimony, and the material part, related to what was done at the time and place of the homicide and was competent as pars rei gestæ.

Fourth. This and the next two exceptions relate to the testimony of Florence Thomason, Mule Russell, and Horace Johnson as to the conduct of Ed Bridgeman and the prisoner. These exceptions are all open to the same criticism as the second of the exceptions. Some of the evidence to which objection was made was competent, and the objectionable part is not specifically stated. But we think the evidence is generally relevant to show the condition of the prisoners, their temper and disposition towards the parties they overtook when the homicide was committed, and their object in going to the place. While not very strong, we cannot say it was not some evidence for the purpose of disclosing those facts. It, at least, did no harm to this prisoner.

Fifth. The thirteenth and fourteenth exceptions are clearly untenable. It was manifestly proper for the court to tell the jury that they must find the facts from the evidence, and not from what counsel or the court had said.

Sixth. The next three exceptions cannot be sustained. There was no evidence of manslaughter, and the judge correctly restricted the inquiry to murder in the first or second degree or acquittal. There was no sudden heat of blood or legal provocation. The court's definition of the different degrees of homicide was correct.

Seventh. That the burden is upon the prisoner to satisfy the jury by proof of any matters of justification, excuse, or mitigation has been too long settled to be now questioned. The jury were instructed that the burden was upon the state to establish beyond a reasonable doubt that the prisoner killed the deceased with premeditation and deliberation. The charge was correct and in accordance with the authorities. State v. Brittain, 89 N.C. 481; State v. Simonds, 154 N.C. 197, 69 S.E. 790; State v. Rowe, 155 N.C. 436, 71 S.E. 332; State v. Yates, 155 N.C. 450, 71 S.E. 317; State v. Vann, 162 N.C. 534, 77 S.E. 295; State v. Cameron, 166 N.C. 379, 81 S.E. 748. This disposes of the nineteenth assignment of error.

Eighth. The court sufficiently defined the meaning of the words "premeditation" and "deliberation," and the jury could not have been misled as to what was necessary to be found by them in order to convict of murder in the first degree, and the mere use of the words disjunctively in a single instance was inadvertent, and did not prejudice the prisoner, as in other parts of the charge the law was stated so clearly and repeatedly that the jury could not have misunderstood it. A similar expression was used in State v. Logan, 161 N.C. 235, 76 S.E. 1, and held not to be reversible error, as it was sufficiently overcome by the charge, if read as a whole.

Ninth. There were several exceptions taken to the statement by the court of the contentions in the case, but, if they were not properly stated, objection should have been made at the time so that the necessary correction could be made. State v. Cox, 153 N.C. 638, 69 S.E. 419; Jeffress v. Railroad Co., 158 N.C. 215, 73 S.E. 1013; State v. Blackwell, 162 N.C. 672, 78 S.E. 316; State v. Cameron, 166 N.C. 379, 81 S.E. 748. It will not do to take the chance of a favorable verdict and except afterwards if it is adverse. The objection then comes too late. Parties must be watchful and diligent if they would preserve their rights, and this means that every objection must be made in apt time and in the proper way. State v. Tyson, 133 N.C. 692, at page 699, 45 S.E. 838, at page 840. We said in that case:

"A party will not be permitted to treat with indifference anything said or done during the trial that may injuriously affect his interest, thus taking the chance of a favorable verdict, and afterwards, when he has lost, assert for the first time that he has been prejudiced by what occurred. His silence will be taken as a tacit admission that at the time he thought he was suffering no harm, but was perhaps gaining an advantage, and consequently it will be regarded as a waiver of his right afterwards to object. Having been silent when he should have spoken, we will not permit him to speak when by every consideration of fairness he should be silent. We will not give him two chances. The law helps those who are vigilant, not those who sleep upon their rights. He who would save his rights must be prompt in asserting them."

Tenth. This brings us to the consideration of what is the main exception of the prisoner. He complains by one or two exceptions that in one instance the learned judge used the expression "involuntary drunkenness," when instructing the jury with respect to the effect of drunkenness upon the prisoner's guilt or upon his capacity for premeditation and deliberation. It makes no difference, it is true, as to...