State v. Fowler, 331
| Decision Date | 20 June 1967 |
| Docket Number | No. 331,331 |
| Citation | 270 N.C. 468,155 S.E.2d 83 |
| Parties | STATE of North Carolina v. Warner FOWLER, Alias Johnny Ringo Graham. |
| Court | North Carolina Supreme Court |
T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.
John H. Kerr, III, Goldsboro, for defendant appellant.
Each case which comes here is important to the parties involved and receives a careful review of the legal questions presented for decision. However, it is the uniform practice of this Court in every case in which a death sentence has been pronounced to examine and review the record with minute care to the end it may affirmatively appear that all proper safeguards have been vouchsafed the unfortunate accused before his life is taken by the State.
In this case the evidence disclosed that on the morning of November 13, 1965 the defendant and his girlfriend, Ruby Rivers (both under the influence of liquor) were engaged in a fight on the streets of Fremont. As police officer W. B. Braswell appeared, Ruby ran and hid in an automobile in the rear of a grocery store. Officer Braswell arrested both participants and took them to the city jail. No one seems to have been in the jail at the time the officer entered with his prisoners. He locked Ruby in cell No. 1, opened the door to cell No. 2 and ordered the defendant to enter. The defendant refused. Ruby Rivers, a witness for the State, testified:
'* * * (I) saw the defendant throw Mr. Braswell down. Mr. Braswell fell in the hallway. Johnny was trying to take the gun out of the holster and Mr. Braswell was trying to hold the gun in the holster. The defendant got the gun and the key ring. The defendant told Mr. Braswell to get to his feet and go into the cell. Mr. Braswell went into the cell. After that I couldn't see Mr. Braswell because I couldn't see around the cell because I was locked up. I could see the defendant because he was still standing in front of the cell. I couldn't see Mr. Braswell. I saw the defendant when he shot Mr. Braswell. He fired the gun once. I saw the defendant holding the gun before he fired it. He was pointing the gun towards the cell, the number two cell. * * *
Right after the defendant took the gun away from Mr. Braswell and before the shooting, Mr. Braswell said, 'You've got the gun, now take it and go.' The defendant didn't say anything then. * * *' After Ruby Rivers had completed her testimony, the State called James Sasser, a police officer, for the purpose of corroborating the story told by Ruby Rivers. The defendant objected. The Court overruled the objection. Witness Sasser, for the purpose of corroboration, testified:
'* * * (S)he said that at that point Mr. Braswell pleaded with him and said, 'You have my gun, please go on, just leave,' the words she used. SHE SAID THAT JOHNNY RINGO HAD MOVED AWAY FROM MR. BRASWELL SOME DISTANCE WITH THE GUN POINTING TOWARDS HIM AND AT THAT POINT HE TOLD HIM HE WAS SORRY BUT HE HAD TO DO THIS, * * *.
COURT: Hold that for a minute, right there. Go ahead.'
Officer Sasser testified, quoting Ruby Rivers, that before firing the fatal shot the defendant 'told him he was sorry but he had to do this.'
The Court charged '* * * that Ruby Rivers told Deputy Sheriff Sasser * * * that Johnny Ringo snatched it (pistol) out of the holster * * * backed up three or four feet * * * had the gun in his hand * * * and said 'I am sorry, I got to do this,' * * * shoved him into the cell * * * held the gun out in front and fired it at that time.' The foregoing is the subject of the defendant's Exception No. 78, Assignment of Error Group 5.
A comparison of the testimony of Deputy Sheriff Sasser, quoting Ruby Rivers, and the Summary of that evidence in the Court's charge, makes it rather obvious the Court's interruption of Sasser's testimony was to enable it to make a note of what the officer said. If the Court stopped the proceedings for the purpose of making a memorandum of the testimony for use in the charge, the interruption served to emphasize the importance of the testimony. State v. Moore, 262 N.C. 431, 137 S.E.2d 812. The statement 'I am sorry, I got to do this' signifies deliberation and a pre-fixed purpose to kill. The trouble is the quotation did not corroborate Ruby Rivers. In fact, it flatly contradicted her evidence. She testified, A careful check of the record before us fails to disclose that Ruby Rivers, at any time, testified the defendant said 'I am sorry, I got to do this,' or anything of like import.
Both Ruby Rivers and Officer Sasser testified for the State in the former trial. We have examined the record filed here on the former appeal. Neither Ruby Rivers nor Officer Sasser testified the defendant made the statement quoted in the preceding paragraph or anything similar thereto. The statement came into the case for the first time through the testimony of Officer Sasser, which purported to be for corroboration only. We do not suggest for one moment that Ruby Rivers did not make the statement Officer Sasser attributed to her, but we do say the statement was not in corroboration of anything Ruby Rivers had testified to and hence was not properly admissible in evidence. A review of the record of the former appeal and the record before us now discloses the only essential difference in the State's evidence in the trials is the addition of the 'corroborative evidence' of Officer Sasser in the latter. This 'corroborative evidence' may account for the difference in the judgments--life imprisonment in the first trial--death in the second.
We are confronted with the question whether the Court, on its own motion, should have withdrawn from the jury the damaging statement Sasser attributed to Ruby Rivers. When Sasser was called by the Solicitor for the purpose of corroborating her testimony, the defendant objected. At the time the Court properly...
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