State v. Henderson

• Decision Date: 24 December 1920
• Docket Number: 530.
• Citation: 105 S.E. 339,180 N.C. 735
• Parties: STATE v. HENDERSON.
• Court: North Carolina Supreme Court

105 S.E. 339

180 N.C. 735

STATE v. HENDERSON.

No. 530.

Supreme Court of North Carolina

December 24, 1920

Appeal from Superior Court, Madison County; Long, Judge.

Frank Henderson (together with one Gertrude Sams) was indicted for the murder of his wife. At the trial the defendant Henderson was convicted of murder in the first degree, and Gertrude Sams was acquitted. From the judgment upon such conviction Frank Henderson appealed to this court. No error.

On an appeal from a conviction of murder in the first degree, the Supreme Court, in considering whether there was any evidence of premeditation or deliberation sufficient to take the issue of that degree to the jury, must consider the entire evidence in the aspect most favorable to the state.

J Coleman Ramsey, of Marshall, and Mark W. Brown, of Asheville for appellant.

The Attorney General and the Assistant Attorney General, for the State.

BROWN J.

The defendant moved for a continuance of the cause because he had not had time to prepare his defense. This matter was presented to the presiding judge by affidavit, and he declined to grant the continuance. This is well settled to be a matter resting in the sound discretion of the judge, and will not be reviewed by us unless there is evidence of an abuse of such discretion. There is nothing of that sort in this record. The same may be said of a motion to remove the cause to another county.

In the typewritten brief of the counsel for defendant we are requested to consider all the exceptions set out in the record. There are 186 pages of typewritten matter in this record, and the court cannot be expected to hunt up all the exceptions of an appellant. We have frequently said that it was his duty to set out in his brief the exceptions that he relies upon and to discuss them. We do not consider any matter of sufficient importance for us to consider, which is not of sufficient importance to be discussed in the brief.

The exception to the refusal of the court to charge the jury that there was no evidence of murder in the first degree was properly overruled. The defendant offered no evidence. There was evidence introduced by his codefendant, Gertrude Sams. The confessions of the defendant were introduced in evidence and properly admitted, and in these confessions he admits the killing of his wife. The counsel for the defendant contends that, if his confession is true, he is not guilty of murder in the first degree, and the motion to nonsuit the first degree count should have been allowed, and the special instructions given.

This may all be true, but the jury is not required to accept the whole of the confession. They may accept a part and reject a part. In considering whether there is any evidence of premeditation and deliberation, the entire evidence must be considered, and in the aspect most favorable to the state.

The state's evidence tended to show that on the morning of August 24, 1920, about 6:30, the dead body of defendant's wife was found upon the porch of the house where she lived as though, apparently, laid out by some person. There was no hat upon her head, or shoes or stockings upon her feet. Her hair was loose, and there were fragments of grass and leaves in it, while her feet showed signs of dirt, as though she had been walking barefooted. Dr. J. N. Moore, a practicing physician and coroner of Madison county, held the post mortem examination upon her body that day. He found a frothy mucus issuing from the mouth and nose, imprints of finger nails on each side of her throat, and black and blue spots on her left arm and right leg; this discoloration extending over the lower part of her throat, and back of it, and over almost her entire back, and parts of both legs and both arms. He further stated that in his opinion she died of strangulation. The house itself was a small wooden house, with a porch in front, about 2 feet from the ground, and about 8 or 10 feet wide. It is about 15 or 20 feet from the road. On the side of the road, but about 77 steps away, was a level place above the road, covered with old dead leaves and things of that sort. There was evidence of a struggle there, and barefoot track and other tracks. Sheriff Bailey picked up a hairpin there that corresponded with hairpins in the hair of the deceased, and the dead leaves at that place corresponded with those in her hair. On the opposite side of the house from this...