State v. Holland
| Decision Date | 13 December 1939 |
| Docket Number | 362. |
| Citation | 6 S.E.2d 217,216 N.C. 610 |
| Parties | STATE v. HOLLAND. |
| Court | North Carolina Supreme Court |
Criminal prosecution tried upon indictment charging the defendant with the murder of Ray Goodman, his step-son about three years of age.
The State offered evidence tending to show:
The defendant entered into the employment of one Sutton about the first of the year, 1939, as operator of a corn mill. In March, 1939, he married one Sallie Goodman and began to live in a small house situated near the mill pond. At the time of the marriage, Ray Goodman, the three year old son of Sallie Goodman, was living with another couple but was taken into the home of the defendant about thirty days after the marriage. On about April 28th, defendant procured a funeral benefit policy providing for the payment of burial expenses in the case of the death of the boy; and one providing for the payment of such expenses in the case of the death of his wife. On May 22nd, the defendant procured a life insurance policy on the life of Ray Goodman, in which the defendant was named as beneficiary. This policy provided for the payment of $600 in the event of the death of the insured within one year; $800 in the event of the death after one year but within two years; and for the payment of $1,000 in the event of death at any time after two years. Application for this policy was dated 1 May, 1939, and the first premium thereon was paid by the defendant. On the morning of June 7th the defendant was heard to say to the deceased, "You are not going to live as long as you have lived." On the afternoon of June 7, 1939, the defendant, his wife and Ray Goodman were at the old mill where the defendant was working. His employer and others were at a filling station and store some distance away. The defendant sent his wife to the house to get a bucket and some lard to fry some fish. A few minutes thereafter the defendant went to the filling station and told Marcellus Sutton that Ray Goodman was in the mill pond and asked him to go and get him out. Sutton went and found the deceased in the mill race floating on top of the water, lying on his back with all of his face on top of the water, his arms spread out, his mouth open, and his tongue a little out of his mouth and his eyes pushed or swelled out of his head. The body was so near to the sills or "sheets" that Sutton was able to rescue the body without getting in the water himself. After the body was rescued it was discovered that the bib to his overralls, the front part of his shirt his face and the front part of his hair were dry and showed no appearance of having been in the water. When first seen in the water the overralls and shirt of the deceased looked as if they had air in them. When taken out of the water the deceased showed no signs of life.
When the defendant was asked whether he had funeral benefit insurance for the child he stated that he did. When asked about life insurance he denied that the life of the child was insured. There was likewise evidence that the defendant could swim but that he stated that the reason he did not take the child out of the water was because he could not swim.
When the body was taken to the funeral home the undertaker discovered that there were bruises on either side of the forehead and on either side of the neck, on the left side a good size bruise and on the right a smaller bruise just over the clavicle just below the Adam's apple, and one on the shoulder. There were three bruises under the left shoulder two small ones and one about the size of a silver dollar and bruises on both legs. The funeral director was unable to discover any water in the lungs. The tongue of the deceased was protruding and the undertaker had to make two slits in his neck in order to get the tongue back in his mouth.
The body was exhumed on the 9th and a post-mortem was had. The physicians could discover no water in the lungs. They did discover a discoloration on each side of the forehead over each eye, bruised spots on each side, midway and over the clavicle or collar bone, small bruised spots on the neck showing pressure on the external tissue and hemorrhage of the small blood vessels of the skin, showing a bruised condition same as choking just below the thyroid or Adam's apple low down just above the collar bone; small bruised spots back of the neck and on the back below the left shoulder blade, a few bruised spots --dark blue in coloration--further down on the back. The eyes were protruding, there was swelling around the eyeballs and the pupils were dilated. There was no fracture of the skull or other bones. The tongue was partially protruding, forming pressure against the teeth. There was no water in the ears, chest, abdominal cavity throat or bronchial tubes. There was no swelling of the lungs or bronchial tubes and there was no water in either.
In the opinion of each of the physicians death was caused by strangulation by external means by force at the hands of some other person.
It was further shown that the body of a person who drowns will ordinarily sink and the body of a person put in water after death will float. It likewise appears that the defendant, on the next day, was under the influence of liquor and did not attend the funeral.
There was a verdict of guilty of murder in the first degree as charged in the bill of indictment. Judgment of death by asphyxiation was pronounced. The defendant excepted and appealed.
George R. Ward, of Wallace, and Gavin & Gavin, of Kenansville, for defendant, appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton, Asst. Attys. Gen., for plaintiff, appellee.
When the State rested the defendant moved to dismiss as of nonsuit. The motion was overruled and the defendant excepted. The record discloses that this motion was not renewed at the conclusion of all the evidence and is, therefore, abandoned.
Counsel for the defendant insist that it is their recollection that such motion was renewed. Assuming this to be the fact, it will avail the defendant nothing. The evidence offered was amply sufficient to justify the submission of the cause to a jury.
Assignments of error Nos. 1, 2, 4 and 7 all relate to the introduction and use in evidence of drawings and photographs of the Sutton Mill site. These exceptions cannot be sustained. The record discloses that the drawings and each of the photographs were properly identified as true representations of the location. In admitting them in evidence the court expressly limited their use for the purpose of illustrating testimony of the witnesses. It excluded them as substantive testimony.
The diagram and photographs were competent for the purposes for which they were admitted. State v. Spencer, 176 N.C. 709, 97 S.E. 155; State v. Lutterloh, 188 N.C. 412, 124 S.E. 752. "Such exhibits are generally used to illustrate the locus in quo of a crime, and the admission, not as testimony but as illustrative of testimony, rests in the discretion of the trial court." Wharton's Criminal Evidence, 11 Ed., Vol. 2, p. 1316.
Assignment of error No. 5 is directed to the alleged error of the court in permitting the witness Pierce to testify as to an experiment he made with the use of two boards thrown in the pond while the water mill was in operation, to determine the drift or flow of the stream. It did not...
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