State v. Johnson

• Decision Date: 11 May 1927
• Docket Number: 445.
• Citation: 138 S.E. 19,193 N.C. 701
• Parties: STATE v. JOHNSON.
• Court: North Carolina Supreme Court

138 S.E. 19

193 N.C. 701

STATE v. JOHNSON.

No. 445.

Supreme Court of North Carolina

May 11, 1927

Appeal from Superior Court, Mecklenburg County; Webb, Judge.

Charlie Johnson was convicted of murder, and he appeals. No error.

Criminal action, tried at October term, 1926, of the superior court of Mecklenburg county. The prisoner was indicted and prosecuted for the murder of one John W. Daniels and was duly convicted of murder in the first degree, whereupon sentence of death was pronounced upon the verdict, as provided in C. S. c. 83 art. 17, and he appealed to the Supreme Court, assigning for error the exceptions set forth in the opinion.

Evidence held sufficient to prove that wound inflicted was mortal.

Tom P Jimison, Flowers & Boyd, and Preston & Ross, all of Charlotte, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

ADAMS J.

The evidence offered by the state tended to show that at the time of the trial the prisoner was about 40 years of age, had been married 20 years, and had spent one-half his married life in prison. He was released on April 16, 1926, and the next day returned to his dwelling at 506 East First street, in the city of Charlotte, then occupied by his wife, his children, and his son-in-law. His house was on one side of the street, and on the other side in a diagonal direction was Kelly's market. This market and the store of the deceased were on the same lot. Soon after his return to Charlotte, the prisoner, in the presence of J. D. Oliver, said that the deceased "had turned him up" for assaulting one of the guards when he escaped from prison, had called the police, and that "he was going to kill him for it." At midnight, June 5, 1926, as the deceased with a package in his hand came from Kelly's market, the prisoner appeared, crossed the street, met the deceased, and shot him with a pistol.

The defense was the general plea, based upon an alibi. The prisoner and the members of his family who testified in his behalf said that he came home in the afternoon, ate his meal, took a bath, retired at half past nine, and remained in bed until a few minutes after the homicide, when his wife waked him; that he did not have a pistol; that his relations with the deceased had been friendly; that he had made no threat, and that he did not fire the fatal shot.

In homicide, the corpus delicti consists of two fundamental facts, the death and the criminal agency as its cause, and upon the state rests the burden of proving each of these facts beyond a reasonable doubt. As a rule, it is not enough merely to show that the body is missing; there must be proof also of death. Clark's Crim. Law, 158; State v. Long, 2 N. C. 456; State v. Williams, 52 N.C. 446, 78 Am. Dec. 248. Accordingly, the prisoner first contends that the state has offered no adequate proof that the wound was mortal. This position is based upon a hypercritical interpretation of the evidence. In addition to direct testimony that the prisoner shot John W. Daniels in the head with a pistol, that Daniels threw up his hands and fell on his face, and that "his brains worked out of his head," there are references in the record to the "death of the deceased" and to the time of the "killing." That death instantly followed the infliction of the wound seems not to have been questioned at the trial, and the point now made that proof of the corpus delicti is wanting is manifestly without merit.

Subject to the prisoner's exception, evidence was admitted which tended to show that about three months before the homicide the prisoner declared his intention and purpose to kill the deceased, the assigned reason being that the deceased caused him to be returned to the chain gang after he had escaped. The prisoner not only objected to the introduction of the evidence, but afterwards moved to strike it from the record. He now insists that according to the testimony of F. B. Blythe, foreman of the convict camp, he was released from prison April 16, 1926, and therefore could not have been in Charlotte at the time the declaration was alleged to have been made. Oliver, who testified as to the declaration, said that if he was mistaken as to the date, he was not mistaken as to the man. Whether Oliver was mistaken was a question for the jury; the testimony, though contradicted, was none the less competent.

But it is contended for the prisoner that it was the duty of his honor, in charging the jury, to direct attention to the conflict between the testimony of Oliver and Blythe; that this was not done; and the failure to do so is reversible error. Specifically, it is contended that the judge did not state in a plain and correct manner the evidence in the case and declare and explain the law arising thereon. C. S. § 564.

Both in criminal and in civil causes it is the duty of the trial judge to present every substantial and essential feature of the case embraced within the issue and arising on the evidence, and this without any special prayer for instructions to that effect; but when the judge has done this, if a litigant desires that some subordinate feature of the cause or some particular phase of the testimony be more fully explained, he should call the court's attention to it by appropriate prayers for instructions or other proper procedure. State v. Merrick, 171 N.C. 788, 88 S.E 501; State v. Thomas, 184 N.C. 757, 114 S.E. 834; State v. O'Neal, 187 N.C. 22, 120 S.E. 817. If Oliver was incorrect as to the date of the alleged declaration and Blythe...