State v. De Graffenreid

• Decision Date: 13 October 1943
• Docket Number: 222.
• Citation: 27 S.E.2d 130,223 N.C. 461
• Parties: STATE v. DE GRAFFENREID.
• Court: North Carolina Supreme Court

27 S.E.2d 130

223 N.C. 461

STATE v. DE GRAFFENREID.

No. 222.

Supreme Court of North Carolina

October 13, 1943

Criminal prosecution tried upon indictment charging the defendant with the murder of one Ollie Moore.

Verdict Guilty of murder in the second degree.

Judgment Imprisonment in the State's Prison for not less than 16 nor more than 20 years.

The defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

K.R Hoyle, of Sanford, for defendant.

STACY Chief Justice.

This is the same case that was before us at the Fall Term, 1942 reported in 222 N.C. 113, 22 S.E.2d 217, with full statement of the facts, to which reference may be had to avoid repetition.

On the present trial, as on the former, Thomas (Fat) McLean was a witness for the State. His testimony now is quite different from what it was then. It is much more damaging to the defendant and in many respects in conflict with what he said on the original hearing.

On cross-examination, he repudiated much of his testimony given on the former trial, and denied giving it. Whereupon the defendant "for the purpose of impeachment and contradiction of the State's witness, Thomas (Fat) McLean, offered his testimony at the former trial of this case, as contained in the mimeographed transcript of this case on appeal to the Supreme Court, Fall Term 1942". Objection by the State; sustained; exception.

Presumably, the basis of the ruling was want of identity or proof of the record, but it is to be observed, according to the transcript, the defendant "offered his testimony at the former trial of this case", and its accuracy or the authenticity of the record seems not to have been mooted. At least, such is the impression gained from the agreed statement of case on appeal. Moreover, it appears from an examination of the mimeographed record offered by the defendant that the "statement of case on appeal", as therein contained, was signed by defendant's counsel; that service was accepted by the solicitor and no counter case was served or exception filed thereto, which thus constituted it the statement of case on appeal by operation of law, and that it purports to recite "all the evidence" in the case. It is a part of the record of this case on the former appeal, and is so certified by the Clerk of Lee Superior Court, the trial court in both instances. 20 Am.Jur. 104. Its competency as evidence to impeach the witness is supported by what was said in Blalock v. Whisnant, 216 N.C. 417, 5 S.E.2d 130; Virginia-Carolina Chemical Co., v. Kirven, 130 N.C. 161, 41 S.E. 1; Aiken v. Lyon, 127 N.C. 171, 37 S.E. 199; State v. Hunter, 94 N.C. 829; State v. Voight, 90 N.C. 741.

The defendant was within his rights in asking the witness if he did not testify to a different state of facts on the original hearing, and "his testimony at the former trial of this case" was competent as tending to impeach him. State v. McLeod, 8 N.C. 344; Merchants Nat. Bank v. Pack, 178 N.C. 388, 100 S.E. 615; Edwards v. Sullivan, 30 N.C. 302. Conversely, it would have been competent as corroborative evidence to support the witness, if and when when his credibility had been attacked. State v. Exum, 138 N.C. 599, 50 S.E. 283; State v. Whitfield, 92 N.C. 831. If competent for any purpose, or for the purpose offered, it was error to exclude it. Allen v. Allen, 213 N.C. 264, 195 S.E. 801. See State v. Kiziah, 217 N.C. 399, 8 S.E.2d 474.

There is another exception, one to the charge, which deserves attention. As the court was concluding its instructions to the jury, the following expression was used: "If you are satisfied from the evidence in this case that the killing of the deceased was without malice, but the prisoner has failed to satisfy you that the killing was not unlawful, it would be your duty to return a verdict of guilty of manslaughter".

Counsel for defendant insists that this instruction presupposes an intentional killing with a deadly weapon, whereas the jury alone on the evidence in the case was competent to make such determination. The point seems to be well taken. It is provided by C.S. § 564 that the trial court shall not intimate or give an opinion to the jury whether a fact has been fully or sufficiently proved, this being the true office and province of the jury. State v. Oakley, 210 N.C. 206, 186 S.E. 244; State v. Kline, 190 N.C. 177, 129 S.E. 417. It is true, upon admission or proof of an intentional killing of a human being with a deadly weapon, the law raises two presumptions against the slayer, first, that the killing was unlawful, and, second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. State v. Walker, 193 N.C. 489, 137 S.E. 429; State v. Benson, 183 N.C. 795, 111 S.E. 869. But the jury alone may determine whether an...