State v. Hart
| Decision Date | 20 March 1946 |
| Docket Number | 145 |
| Citation | 37 S.E.2d 487,226 N.C. 200 |
| Parties | STATE v. HART. |
| Court | North Carolina Supreme Court |
The defendant was indicted under two bills of indictment, one charging him with the murder of Marjorie Blackwood and the other with the murder of Al Preston Blackwood. Without objection, the two indictments were consolidated for the purpose of trial. The defendant was convicted of murder in the first degree upon the bill of indictment charging him with the murder of Marjorie Blackwood, and convicted of murder in the second degree upon the bill of indictment charging him with the murder of Al Preston Blackwood. Upon the conviction of first degree murder of Marjorie Blackwood the Court entered judgment of death and the defendant appealed, assigning errors. No appeal was taken by defendant from the conviction of him of second degree murder of Al Preston Blackwood.
E L. Travis, of Halifax, and W. Bernard Allsbrook, of Roanoke Rapids, for defendant, appellant.
Harry M. McMullan, Atty. Gen. and Hughes J. Rhodes, Ralph M. Moody and J. E. Tucker, Asst. Attys. Gen., for the State.
There are many exceptions noted in the record which are not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited. These exceptions are taken as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562. In fact only two exceptions are set out in the appellant's brief, and therefore only those two exceptions will be referred to in the opinion of the Court. They are exception No. 5, which relates to the Court's refusal to grant defendant's motion for judgment as in case of nonsuit as to the charge of murder in the first degree; and Exception No. 7, which relates to the Court's refusal to grant defendant's motion to set aside the verdict and order a new trial upon the ground that it was improper, unfair and prejudicial due to a witness for the State serving as officer of the jury.
Under Exception No. 5, the appellant says in his brief: 'The defendant, at the close of the State's evidence, made motion of nonsuit as to murder in the first degree, the motion was overruled and defendant elected not to offer any evidence. ' The defendant challenges the sufficiency of the evidence to take the case to the jury as to the charge of murder in the first degree, because all of the evidence tends to show that he and the deceased got into an argument and he (defendant) killed her (deceased) within a space of fifteen or twenty minutes; that the evidence shows there was no premeditation and deliberation, and that the killing was under the influence of passion suddenly aroused, and the intent to kill, if any, was formed simultaneously with the act of killing.
As tending to show that defendant was not acting solely under the influence of passion suddenly aroused, the State's witness Christine Blackwood testified: 'He (defendant) got one shell and said 'This is Miss Margie's dose' when he showed me the shot,' and later the same witness testified the defendant said 'Yes, I shot Margie through the head. ' The witness George Ed Blackwood testified: 'Thomas Hart was in there with me and said he was going to kill every one there. ' This testimony, together with other evidence in the record tending to show that the defendant obtained the gun and shells and had them in his possession before shooting the deceased, was, in our opinion, sufficient to overcome the defendant's motion to nonsuit the charge of premeditation and deliberation.
' State v. Wise, 225 N.C. 746, 748, 36 S.E.2d 230, 232. Applying the law as here enunciated, we are of the opinion that there was at least some evidence, enough to be submitted to the jury, upon the question of premeditation and deliberation, and this is the only question presented to us on the motion to nonsuit. Whether such evidence was...
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State v. Mettrick
...1981, there is no evidence of any out-of-court contact between these officers and members of the jury panel. In State v. Hart, 226 N.C. 200, 203, 37 S.E.2d 487, 489 (1946), the Court "The decisions by the various courts have not been in accord, but we are now of the opinion that the weight ......
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