State v. Hawley

• Decision Date: 04 June 1948
• Docket Number: 723
• Citation: 48 S.E.2d 35,229 N.C. 167
• Parties: STATE v. HAWLEY.
• Court: North Carolina Supreme Court

48 S.E.2d 35

229 N.C. 167

STATE v. HAWLEY.

No. 723

Supreme Court of North Carolina

June 4, 1948

Criminal prosecution upon bill of indictment charging defendant with the offense of murder in the first degree of one Effie Hawley, at and in Granville County, on 29 September, 1947.

The record on this appeal shows that defendant, upon arraignment pleaded not guilty. It contains also case on appeal served by defendant through his attorneys, to which the solicitor for the State agreed.

This case on appeal presents these salient facts: On the trial below the State offered evidence tending to support the charge of murder in the first degree with which defendant stands indicted. The defendant offered no evidence, and his counsel had and made the opening and concluding arguments to the jury. In the meantime, arguments were made by attorneys for private prosecution, followed by the solicitor for the State.

The substance of the concluding part of the solicitor's argument to the jury as shown in the case on appeal, to which the solicitor agrees and to which exception by defendant appears, is as follows:

'In North Carolina there are four capital felonies, that is felonies for which the punishment is death. Murder in the first degree is one of these felonies. The defendant is being tried under a bill of indictment which charges murder in the first degree, and the State is asking for a conviction. I know that juries as a rule are reluctant to find defendants guilty of an offense for which the punishment is death. You gentlemen of the jury, are but a small cog in the final determination and conclusion of this case. If you find the defendant guilty as charged, and the defendant is sentenced by the Presiding Judge to be executed in the manner which the statute prescribes, that does not mean that the defendant will be put to death. Before the defendant will be put to death the Supreme Court will review his trial, whether or not the defendant appeals, and the Supreme Court will seek to find some error or errors entitling the defendant to a new trial. If the Supreme Court fails to find error, the Governor, through the Commissioner of Paroles, will be urged to extend executive clemency. Petitions and letters of recommendation recommending clemency, will be filed, and the Commissioner of Paroles, and in all probability the Governor, personally, will carefully review and consider this case and all recommendations and petitions filed in the defendant's behalf, before the defendant is executed, and I argue to you, gentlemen of the jury, that not all, but only a certain percentage, of the defendants who are convicted in North Carolina of capital felonies finally suffer the death penalty. You can see, therefore, gentlemen of the jury, that you are only a small cog in the final determination of what may happen to this defendant, even if you find him guilty, as charged in the bill of indictment.'

Counsel for defendant, who followed the solicitor, replied to the above argument. And it is stated that 'while the solicitor was addressing the jury the presiding judge was on the bench, but was engaged in reviewing his notes on the evidence, preparatory to making the charge and was not following the argument of the solicitor to the jury. No objection to said argument was made by counsel for defendant at any time during the term, nor was it called to the attention of the court that the solicitor was making the argument to which exception is now being made'.

Verdict: Guilty of murder in the first degree.

Judgment: Death by administration of lethal gas.

Defendant appeals therefrom to Supreme Court, and assigns error.

Harry M. McMullen, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

T. G. Stem and B. S. Royster, Jr. both of Oxford, for defendant-appellant.

WINBORNE Justice.

The remarks of the solicitor for the State in concluding his address to the jury on the trial in Superior Court, to which alone exception is directed on this appeal, are to the same effect as those held by this Court in the case State v Little, 228 N.C. 417, 45 S.E.2d 542, to be calculated to prejudice unduly the defendant in the defense of the charge against him, and on account of which a new trial was ordered. There, as here, the defendant was on trial charged with murder in the first degree. ...