State v. Hunt

• Decision Date: 02 March 1976
• Docket Number: No. 6,6
• Citation: 222 S.E.2d 234,289 N.C. 403
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Rozell Oxendine HUNT.

Page 234

222 S.E.2d 234

289 N.C. 403

STATE of North Carolina v. Rozell Oxendine HUNT.

No. 6.

Supreme Court of North Carolina.

March 2, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles J. Murray, Raleigh, for the State.

Henry T. Drake, Wadesboro, for defendant.

LAKE, Justice.

The defendant's motions for a directed verdict and for a judgment of nonsuit are the same in legal effect and the test of the sufficiency of the evidence to withstand each such motion is the same. State v. Glover, 270 N.C. 319, 154 S.E.2d 305 (1967); GS 15--173. It is well established that in considering such a motion the evidence for the State must be deemed to be true and must be considered in the light most favorable to it, the State being entitled to the benefit of all inferences in its favor which may reasonably be drawn therefrom. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971); State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967); State v. Bruton, 264 N.C. 488, 142 S.E.2d 169 (1965). All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State, must be taken into account and must be so considered by the court in ruling upon the motion. State v. Cutler, supra; State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1965); State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964). The motion should be denied when, upon such consideration of the evidence, there is substantial evidence to support a finding that an offense charged in the bill of indictment has been committed and the defendant committed it. Strong, N.C. Index 2d, Criminal Law, §§ 104, 106.

The evidence in the present case, so considered, is ample to support findings that the defendant, with intent to kill Joe Hunt and pursuant to a preconceived plan to do so, purchased rat poison containing arsenic, that she poured it into tea prepared specially for his consumption and served the tea to him, that Joe Hunt drank the tea into which the defendant had poured such poison, and that he, almost immediately, became ill and died within a few hours, the cause of his death being arsenic poison. 'A murder which shall be perpetrated by means of poison * * * shall be deemed to be murder in the first degree and shall be punished with death.' GS 14--17.

There is no merit whatever in the contention of the defendant that the evidence is not sufficient to support a finding that the Joe Hunt, whose body was exhumed and found to contain arsenic poisoning in sufficient quantity to cause death, and which did cause his death, was the same Joe Hunt whose tea was prepared, poisoned and served to him by the defendant. The testimony of Brenda Jacobs was that the Joe Hunt so poisoned by the defendant died and was buried in Rowland, Robeson County, and that the State's Exhibit 1 is a photograph fairly and accurately representing the appearance of his body as it lay in the casket prior to burial. The testimony of Ronald Hawley, agent of the State Bureau of Investigation, is that he was present when the body of Joe Hunt was exhumed from the grave in Rowland and when the casket was opened and that the State's Exhibit 4 is a photograph correctly portraying the appearance of the body of Joe Hunt when the casket was first opened. The testimony of Dr. Page Hudson, Chief Medical Examiner of North Carolina, is that he performed the autopsy upon the body brought to his office by Agent Hawley, which body was identified by Agent Hawley as that of Joseph Hunt, and that the State's Exhibit 5 is a photograph of the body so brought to him, and that this body contained arsenic poisoning, which poisoning was, in the opinion of Dr. Hudson, the cause of death. The three photographs were properly exhibited to the jury and formed a sufficient basis to support its conclusion that the body upon which the autopsy was performed was the body of the man to whom the defendant so administered poison. The record does not indicate the slightest suggestion by the defendant at the trial to the contrary. The motion for judgment of nonsuit and the motion for a directed verdict of not guilty were properly overruled.

Obviously, the defendant was entitled to offer evidence in her defense at the trial, either through her own testimony or through the testimony of other witnesses. Constitution of North Carolina, Art. I, § 23. Of course, she would have been entitled to a new trial had the court, as the defendant asserts in her brief, refused to allow the defendant to put on evidence. There is, however, no merit in this contention for the reason that the record clearly shows the contrary.

At the conclusion of the State's presentation of the evidence, the trial judge asked if there were any evidence for the defendant. Defendant's trial counsel replied, 'No, Sir.' Thereupon, the defendant and her counsel retired from the courtroom for a conference and upon their return, the trial judge, out of the presence of the jury, conferred with the defendant and her counsel. The record shows clearly that the court informed the defendant that, though her counsel had advised that she not put on any evidence, she did not have to follow the advice of her counsel. The record indicates that in this conference between the court, the defendant and her counsel, the probable nature of the testimony of witnesses whom the defendant had under consideration was discussed and the defendant concluded her best chance lay in not calling them to the stand. Thereupon, her counsel announced in open court that the defendant chose not to put on any evidence. This assignment of error is overruled.

There was no error in the trial court's permitting the District Attorney to question prospective jurors concerning their beliefs with reference to capital punishment. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974). In the Crowder case, we said, 'In order to insure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror's moral or religious scruples, beliefs, and attitudes toward capital punishment.' Furthermore, the record discloses that no juror was challenged for cause by reason of his or her views on the subject of capital punishment. The record indicates that only three jurors were challenged by the State, all of them peremptorily. This assignment of error is without merit.

The defendant's Assignments of Error 12, 13 and 14 are without merit. These relate to alleged errors by the court in the court's review of the evidence and of the contentions of the defendant, inherent in her plea of not guilty, in the court's charge to the jury. As to these assignments of error, it is sufficient to note that there is no indication in the record that any of the alleged inaccuracies was called to the attention of the court before the jury retired. The law requires that this be done in order to give the trial judge an opportunity to correct any alleged inaccuracy in his review of the evidence and statement of the contentions of the parties. In State v. Virgil, 276 N.C. 217, 230, 172 S.E.2d 28, 36 (1970), this Court, speaking through Justice Huskins, said, '(I)t is the general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal.' In support of this principle, see the following cases there cited: State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968); State v. Butler, 269 N.C. 733, 153 S.E.2d 477 (1967); State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960); State v. Rhodes, 252 N.C. 438, 113 S.E.2d 917 (1960); State v. Holder, 252 N.C. 121, 113 S.E.2d 15 (1960); State v. Shumaker, 251 N.C. 678, 111 S.E.2d 878 (1960); State v. Grundler, 251 N.C. 177, 111 S.E.2d 1 (1959); State v. Moore, 247 N.C. 368, 101 S.E.2d 26 (1957); State v. Saunders, 245 N.C. 338, 95 S.E.2d 876 (1957).

We have, however, carefully reviewed this portion of the judge's charge to the jury and we find therein no significant inaccuracy. It is true that the court in its review of the evidence referred to Joseph Hunt as the 'common law husband' of the defendant, whereas the record on appeal does not disclose their relationship except that they were living together with Brenda Jacobs, 'Gene Lindsey * * * and all of Rozell's and Joe's children' in a five room house. The defendant's counsel on appeal was not her trial counsel. Like us, his knowledge of what occurred at the trial is limited to the printed record. Whether the trial judge's understanding of the relationship between the defendant and the deceased had basis in some reference thereto in the presence of the jury at the trial, we are unable to determine. It is, however, clear that his characterization of it in the charge evoked no objection from the defendant's trial counsel and, apparently, he did not deem the judge's statement prejudicial.

If there was no evidence to support it, the judge's characterization of the relationship in his charge was, of course, error, but, in view of the evidence in the record, we think it inconceivable that a different verdict would have been reached had the judge merely referred to the deceased as the husband of the defendant. The error, if any, was clearly harmless. New trials are not given, even in capital cases, where there is no reasonable basis for supposing that, but for the error, a different result would have been reached. State v. Bryant, 283 N.C. 227, 195 S.E.2d 509 (1973); State v. Fletcher and Arnold, 279 N.C. 85, 100, 181 S.E.2d 405 (1971); State v. Paige, 272 N.C. 417, 424, 158 S.E.2d 522 (1968); State v. Rainey, 236 N.C. 738, 74 S.E.2d 39 (1953).

After reviewing the evidence and...