State v. Fowler

• Decision Date: 25 May 1949
• Docket Number: 577
• Citation: 53 S.E.2d 853,230 N.C. 470
• Parties: STATE v. FOWLER.
• Court: North Carolina Supreme Court

53 S.E.2d 853

230 N.C. 470

STATE v. FOWLER.

No. 577

Supreme Court of North Carolina

May 25, 1949

Criminal prosecution on indictment charging the defendant with the murder of one Mamie J. Wilkerson.

The record discloses that Mamie J. Wilkerson, a widow, and her four small children lived in a two-room house near the village of Vass in Moore County. The defendant lived alone in a house about '25 good steps away'. Both houses were close to the home of Ed McKeithan.

On the night of 8 November, 1947, 'somewhere after nine' the defendant was at the home of Ed McKeithan and said to him: 'Had a little fight tonight * * * after everything got settled down I am going across the branch tonight. * * * If I don't be here tonight you can have what I leave in my house'.

The defendant went to the home of Mamie J. Wilkerson about eleven o'clock. She was in the front room with her two small boys who were in bed. Her two daughters, eleven and thirteen years of age, were sleeping in the kitchen. The defendant had been in the house only a few minutes when he went into the kitchen, got an axe, returned to the room where Mamie Wilkerson was sitting in a chair, and proceeded to knock her in the head with the axe, causin her death.

The defendant had known the deceased for a year or two. He had been in her house on numerous occasions 'in the day time and night time '. He had carried her to Vass on the day of the homicide to buy groceries.

Annie Ruth Wilkerson, 13-year-old daughter of the deceased, was asked what was said between her mother and the defendant prior to the slaying. She answered: 'Mama asked him where he was going and he wouldn't say nothing and mama said she was going after the sheriff and he didn't say nothing; he went in the kitchen and got the axe and hit her on the head three times with it. * * *

Cross-examination 'Q. Now you testified that you heard your mother say she was going to get the law--where was she when she said that? A. She was in the front room where the bed was. Yes, sir. I could hear her say that from the room where I was sleeping.

'Q. Was it after she said that that he came into the kitchen and got the axe or before that? A. It was before that.'

The defendant immediately left in his car, and was not apprehended until four or five months later when the sheriff was notified that he was being held by the Durham police.

While transporting the prisoner from Durham to Carthage, he confessed to the sheriff that he had killed Mamie J Wilkerson.

The solicitor: 'Q. State whether the defendant at that time or in talking with you thereafter, told you anything about where he came from and whether he had been in any other trouble? ' Objection; overruled; exception. 'Ans. He stated, to my inquiry, that he was serving a life sentence at the South Carolina Penitentiary for the murder of a colored man down there '. Motion to strike; denied; exception. 'He said he had been an escapee about three years from that Penitentiary '.

Objection; motion to strike; denied; exception.

The defendant offered no testimony.

Verdict: Guilty of murder in the first degree.

Judgment: Death by asphyxiation.

The defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and Ralph M. Moody, Asst. Atty. Gen., and Forrest H. Shuford, Raleigh, Member of Staff, for the State.

W. D. Sabiston, Jr., Carthage, for defendant.

STACY Chief Justice.

The question for decision is whether the defendant's statement to the sheriff that he had killed a man in South Carolina and was an escaped convict from that State was properly admitted in evidence against him on the present prosecution. The answer is to be evolved from the record.

We start with the general rule that evidence of one offense is inadmissible to prove another and independent crime, the two being wholly disconnected and in no way related to each other. State v. Choate, 228 N.C. 491, 46 S.E.2d 476; State v. Harris, 223 N.C. 697, 28 S.E.2d 232; State v. Smith, 204 N.C. 638, 169 S.E. 230; State v. Deadmon, 195 N.C. 705, 143 S.E. 514; State v. Dail, 191 N.C. 231, 131 S.E. 573; State v. Miller, 189 N.C. 695, 128 S.E. 1; State v. Graham, 121 N.C. 623, 28 S.E. 409. The reason for the rule is to preserve to the accused, unincumbered by suggestion of other crimes, the common-law presumption of innocence with attaches upon his plea of 'not guilty', and to protect him from the disadvantage of extraneous and surprise charges; also to confine the investigation to the offense charged. State v. Lyle, 125 S.C. 406, 118 S.E. 803.

To this general rule, however, there is the exception as well established as the rule itself, that proof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge or scienter, or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions. State v. Stancill, 178 N.C. 683, 100 S.E. 241; State v. Beam, 184 N.C. 730, 115 S.E. 176; State v. Choate, supra; State v. Morris, 84 N.C. 756, 757; State v. Edwards, 224 N.C. 527, 31 S.E.2d 516; State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Ferrell, 205 N.C. 640, 172 S.E. 186; State v. Simons, 178 N.C. 679, 100 S.E. 239; State v. Kent, 5 N.D. 516, 69 N.W. 1052, 35 L.R.A. 518; Wigmore on Evidence (3rd) Vol. 2, Sec. 390; Note to People v. Molineux, 168 N.Y. 264, 61 N.E. 286, as reported in 62 L.R.A. 193-357 (q.v.).

It is important to bear in mind the principle upon which the exception rests, for unless the proffered evidence of other offenses legitimately fall within its scope, it should be excluded. State v. Adams, 138 N.C. 688, 50 S.E. 765. And it may be that the line of demarcation which separates the rule from the exception has been blurred or rendered difficult of discernment by reason of its seemingly inconsistent application in some of the cases. State v. Edwards, 224 N.C. 527, 31 S.E.2d 516; State v. Biggs, 224 N.C. 722, 32 S.E.2d 352; State v. Kelly, 216 N.C. 627, 6 S.E.2d 533; State v. Flowers, 211 N.C. 721, 192 S.E. 110. If so, we must try again to plot its course. The statement of the difference is simple enough. Its application is the place of the pinch or the rub. The exception requires a more relevant base than the mere disposition of the accused to commit such crimes. State v. Beam, supra. The touchstone is logical relevancy as distinguished from certain distraction. 'Never run rabbits while pursuing the fox', is a rule of the sportsman, equally worthy of observance in the trial of causes as on the hunt. Good sportsmanship is after the manner of good morals and good law.

It is likewise to be borne in mind that the defendant offered no evidence in the case, and did not put his general reputation and character in issue. State v. Nance, 195 N.C. 47, 141 S.E. 468; State v. Colson, 193 N.C. 236, 136 S.E. 730.

In support of the ruling below, it is pointed out that the defendant confessed to both offenses at the same time, i.e., he told the sheriff that he killed Mamie J. Wilkerson and in the same conversation he stated that he was an escaped convict from South Carolina. It is contended, therefore, that the whole of the confession was admissible. State v. Edwards, 211 N.C. 555, 191 S.E. 1; State v. Swink, 19 N.C. 9; Anno. 26 A.L.R. 542; 2 A.L.R. 1030. The general rule is that a confession, like a deposition, Landis Christmas Savings Club v. Merchants Nat. Bank, 178 N.C. 403, 100 S.E. 607, should be offered in its entirety. State v. Patterson, 63 N.C. 520. Whether any part of it should be excluded, or admitted under special instructions according to its relevancy, is a matter about which the courts are divided. Anno. 2 A.L.R. 1029; 22 C.J.S., Criminal Law, s 820, page 1439.

In reply to the State's position, the defendant says the record fails to make manifest the unity of the confession, or that the two statements were made or elicited in the same conversation. Moreover, the right of the confessor to have his confession considered as given, in its entirety, with whatever views or theories it affords, State v. Jones, 79 N.C. 630, may not extend to the prosecution, for if the part pertaining to the crime charged can be separated from the part relating to other offenses, only the part material to the inquiry should be received in evidence under the rule. People v. Loomis, 178 N.Y. 400, 70 N.E. 919; People v. Spencer, 264 Ill. 124, 106 N.E. 219; 20 Am.Jur. 426; 22 C.J.S., Criminal Law, s 820, p. 1440. On this point it would seem that the defendant's position is the sounder one. People v. Rogers, 192 N.Y. 331, 85 N.E. 135; People v. Rogers, 192 N.Y. 331, 85 N.E. 135, 15 Ann.Cas. 177. At least, such accords with many of the well-considered cases. Anno. 2 A.L.R. 1029 Then, too, it should be observed that the evidence in respect of the defendant's past criminal record was stated by the sheriff, not in giving the defendant's confession in chief, nor as an integral part thereof, but in response to a direct and independent question by the solicitor. People v. Loomis, supra.

By and large, however, the chief reliance of the prosecution is that the proffered testimony comes within the exception to the general rule of exclusion. 22 C.J.S., Criminal Law, s 738, p 1272. It was inferred in its admission, under authority of State v. Swink, supra, that the defendant wished to get rid of the deceased for fear she would disclose his past criminal...