State v. Fox

• Decision Date: 31 July 1970
• Docket Number: No. 19,19
• Citation: 175 S.E.2d 561,277 N.C. 1
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Roy Lee FOX.

Page 561

175 S.E.2d 561

277 N.C. 1

STATE of North Carolina v. Roy Lee FOX.

No. 19.

Supreme Court of North Carolina.

July 31, 1970.

Robert Morgan, Atty. Gen., Andrew A. Vanore, Jr., and Burley B. Mitchell, Jr., Raleigh, Staff Attys., for the State.

T. E. L. Lipsey, Asheville, for defendant appellant.

SHARP, Justice.

This case first came to us as a joint appeal by Roy Lee Fox and Carson McMahan, who had been tried with the other two defendants jointly indicted with them. Neither Roy Lee Fox nor Carson McMahan had testified, yet the confession of each, which implicated the other, had been admitted in evidence. This error necessitated a new trial and, in ordering it, we directed that defendants Roy Lee Fox and Carson McMahan be tried separately unless the State relinquished their confessions. State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502.

Upon the second trial, as in the first, all the evidence tended to show: Defendant and the three other persons named in each indictment had conspired to break and enter, during the night time, the dwelling occupied by Mr. and Mrs. Lunsford for the purpose of robbing Mr. Lunsford of his billfold. In furtherance of the conspiracy, defendant accountered Donald and Arrlie for the burglary, drove them to the locale, and gave Donald the pistol with which he thereafter shot Mrs. Lunsford during the attempt to rob Mr. Lunsford. While Donald

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and Arrlie went into the house to rob Lunsford, defendant drove around in the vicinity and returned to pick them up.

Defendant's first two assignments of error are that the trial judge erred (1) in 'allowing' defendant to be retried upon the two original indictments in which he and three others were jointly charged with first-degree murder and burglary; and (2) in consolidating the two charges against defendant for trial. It is obvious, however, that the nature of the case dictated this procedure.

When a murder is 'committed in the perpetration or attempt to perpetrate any * * * robbery, burglary or other felony,' G.S. § 14--17 declares it murder in the first degree. In those instances the law presumes premeditation and deliberation, and the State is not put to further proof of either. State v. Bunton, 247 N.C. 510, 101 S.E.2d 454; State v. Mays, 225 N.C. 486, 35 S.E.2d 494. Furthermore, when a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree. On this evidence Roy Lee Fox was not only a co-conspirator with Arrlie and Donald Fox; he was constructively present aiding and abetting in the two crimes charged and, therefore, a principal. State v. Sellers, 266 N.C. 734, 147 S.E.2d 225; State v. Maynard, 247 N.C. 462, 101 S.E.2d 340; State v. Green, 207 N.C. 369, 177 S.E. 120; Lindsey v. State, 201 Ark. 87, 143 S.W.2d 573; Clernt v. State, 109 Neb. 628, 192 N.W. 209; 77 C.J.S. Robbery § 32 (1952). See State v. Bell, 205 N.C. 225, 171 S.E. 50.

In each of the two bills upon which defendant was tried it was entirely proper to name the four persons who had conspired to rob Mr. Lunsford even though no conspiracy was expressly averred. State v. Maynard, Supra. However, since Roy Lee Fox himself did not enter the Lunsford home and was not Actually present when Mrs. Lunsford was killed, the State was required to prove that he had conspired with Arrlie and Donald Fox who actually committed the burglary and murder.

Defendant's argument that it was error to retry defendant on the original indictment is that 'by so doing the court allowed evidence to be presented to the grand jury as to codefendants implicating the defendant thereby taking from him one of the legally required steps looking toward the second trial.' The statement is puerile. Equally so is the statement that when the court consolidated the charges of murder and burglary, two offenses which grew out of one continuous criminal episode, the court 'thereby compounded the original biased advantage that the State was allowed to take in the matter of the evidence that could be presented against the codefendants who were not on trial.' When two or more indictments are founded on one criminal transaction G.S. § 15--152 contemplates that the court will consolidate them for trial. State v. Arsad, 269 N.C. 184, 152 S.E.2d 99; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506; State v. White, 256 N.C. 244, 123 S.E.2d 483. In this case the facts required to convict defendant of murder would necessarily have convicted him of the burglary charged. For the judge to have put the State to two separate trials would have been unthinkable.

The third assignment of error is that the court failed 'to allow challenges for cause on jurors who were prejudiced as a result of knowledge admitted regarding adverse publicity about the defendant.' This assignment of error, in complete disregard of our rules, does not specifically set out the jurors 'knowledge admitted' upon which the alleged error is predicated. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416. The assignment referes to pages 30--34 of the record, where a portion of the Voir dire examination of three prospective jurors is set out. After the court denied defendant's challenges for cause his counsel

Page 572

challenged each peremptorily. The first two were prospects for the original panel of twelve; the third was a prospective alternate. At the conclusion of their examination each of the three stated, in effect, that he could decide the case on the evidence and the law as enunciated by the court without being influenced by what he had read and heard or by any preconceived notions as to the law. The court's ruling that the three were competent jurors is sustained by numerous decisions of this Court. See State v. DeGraffenreid, 224 N.C. 517, 31 S.E.2d 523 and the cases cited therein.

Defendant's case on appeal does not disclose whether, after he had exhausted his peremptory challenges, he unsuccessfully attempted to challenge an additional juror. Because of this inconclusiveness we read the 704-page transcript of the proceedings incident to the selection of the jury. It revealed that when twelve jurors had been selected defendant had exhausted only ten of his fourteen peremptory challenges and that, in response to a direct question from the judge, defendant stated he was 'satisfied with them (the jurors) to hear his case.' Thereafter three alternates were selected. In the selection of the first, defendant used his four unexpended challenges and one other. Before the second was seated he had used his two peremptory challenges, but he did not challenge the juror who was finally sworn as the second alternate. In the selection of the third alternate, defendant used only one peremptory challenge.

Defendant's fourth assignment of error is that the court failed 'to allow additional peremptory challenges for the alternate jurors and the defendant did exhaust his challenges at the time of the trial.' In his brief, defendant makes this statement: 'The Court over the objection of the defendant (R p 34) ruled that the defendant would be allowed two challenges for ALL alternate jurors selected not two EACH as the statute reads and intended.' Both the record and the certified transcript belie this statement. After defendant had exercised his first peremptory challenge during the selection of the second alternate the court said to counsel: 'So there will be no misunderstanding I am going to hold that there will be two challenges as to each alternate because I don't know now whether there will be two or three alternates.' This ruling was in conformity with G.S. § 9--18 which provides that in the selection of alternate jurors after the regular jury has been impaneled, 'Each party shall be entitled to two peremptory challenges as to each such alternate juror, in addition to any unexpended challenges the party may have left after the selection of the regular trial panel.' Clearly the court did not deprive defendant of any peremptory challenge to which he was entitled, nor was defendant forced to accept any juror whom he had challenged peremptorily or for cause.

'Numerous decisions of this Court, E.g., State v. Dixon, 215 N.C. 438, 440, 2 S.E.2d 371, 372, hold that a defendant has not been prejudiced by the acceptance of a juror who is challenged for cause and the cause is disallowed unless he exhausts his peremptory challenges before the panel is completed. Other decisions, E.g., Carter v. King, 174 N.C. 549, 94 S.E. 4, hold that a defendant, in order to preserve his exception to the court's denial of a challenge for cause, must (1) exhaust his peremptory challenges And (2) thereafter assert his right to challenge peremptorily an additional juror. These rulings are plainly and succinctly summarized in the first headnote in Carter v. King, 174 N.C. 549, 94 S.E. 4, which epitomizes the decision in that case, as follows: 'Where the court has refused to stand aside a juror challenged for cause, and the party has then peremptorily challenged him, in order to get the benefit of his exception he must exhaust his remaining peremptory challenges, and then challenge another juror peremptorily to show his dissatisfaction with the jury, and except to the refusal of the court to allow it. "

Page 573

State v. Allred, 275 N.C. 554, 563, 169 S.E.2d 833, 838.

We find nothing in the case on appeal or transcript which suggests that defendant was not tried by a fair and impartial jury. Of the twelve jurors selected on the regular panel six were opposed to capital punishment; one was not asked his views; four 'believed in' capital punishment only in 'some cases.' Only one stated without equivocation that he 'believed in' capital punishment. Of the two alternates who were substituted for regular jurors, one did not believe in capital punishment and the other believed in it only 'in some cases.'

Defendant...