State v. Khoury

• Decision Date: 28 October 1908
• Citation: 149 N.C. 454,62 S.E. 638
• Parties: STATE. v. KHOURY.
• Court: North Carolina Supreme Court

62 S.E. 638

149 N.C. 454

STATE.

v.KHOURY.

Supreme Court of North Carolina.

Oct. 28, 1908.

1. Criminal Law (§ 301^*) — Pleas — Withdrawal—Discretion.

It was within the trial court's discretion to refuse to strike a plea of not guilty entered at a prior term.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 687; Dec. Dig. § 301.*]

2. Criminal Law (§ 625*)—Trial op Separate Issues—Insanity—Inquisition — Judicial Discretion.

Whether, when accused was put on trial, the court should suspend proceedings and impanel a jury to ascertain whether he was then insane was a matter resting within its sound discretion, and it was not error to proceed with the trial, allowing evidence on the issue of sanity at the time of the offense and at the time of the trial, where counsel's suggestion of insanity was not supported by affidavit or otherwise.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1391-1395; Dec. Dig. § 625.*]

3. Criminal Law (§ 456*)—Evidence—Opinions—Accused's Sanity.

Persons, who had had more or less opportunity to form an opinion as to accused's mental condition, were properly allowed to express an opinion on the subject.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1045; Dec. Dig. § 456.*]

4. Criminal Law (§ 804*)—Trial—Instructions—Form.

Though a trial judge must put his entire charge in writing when so requested, it is not reversible error to state the contentions of the parties orally, or to supplement slight omissions.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1948-1951; Dec. Dig. § 804.*]

Appeal from Superior Court, Cumberland County; Peebles, Judge.

Solomon K. Khoury was convicted of burglary, and he appeals. Affirmed.

At the March term, 1908, of the superior court of Cumberland county, a bill of indict ment, charging defendant with burglary in the second degree, was found by the grand jury. At said term defendant, through his counsel, came into court, and entered his plea of "not guilty." At the same term the brother of defendant filed an affidavit, upon which he based a motion for a continuation of the case on account of the absence of certain witnesses named, by whom he expected to show that defendant is of unsound mind, and has been so for one or two years. The motion was continued. At May term, 1908, Judge Long presiding, defendant, through his counsel, tendered a plea of insanity at that time, and at the time of the alleged commission of the offense. He also moved to strike out the plea of not guilty entered at the last term, stating that he did not intend to enter such plea, and did not recollect having done so. Motion was continued. At the August special term, 1908, the motions were renewed, and counsel also moved to amend the record by striking out the plea of "not guilty." Motions refused. The defendant excepted. Defendant was put upon his trial upon his plea of not guilty. Verdict of guilty. Defendant moved in arrest of judgment, upon the ground that he was then insane. Motion overruled. Defendant excepts. Judgment and appeal.

V. C. Bullard and Q. K. Nimocks, for appellant.

Hayden Clement, Asst. Atty. Gen., for the State.

CONNOR, J. (after stating the facts as above). The first assignment of error is directed to his honor's refusal to permit defendant to withdraw his plea of "not guilty, " or to amend the record by striking out said plea, and submitting an issue directed to the question of his insanity at the time of the trial. His honor refused this motion, and upon the trial heard evidence in regard to defendant's insanity, both at the time of the trial and the time the alleged crime was committed. No ground was laid, by way of affidavit or otherwise, at the time the case was heard by Judge Peebles, to show that defendant was insane at the time the plea was entered (March term, 1908) or at the time of the trial. It was in the sound discretion of the judge to refuse to strike out the plea of "not guilty, " entered at March term. We see no ground upon which his honor's action, In that respect, can be disturbed. Whether, at the time defendant was put upon his trial, the court should have suspended proceedings and impaneled a jury to ascertain whether he was then insane, is a matter resting in the sound discretion of the court. In Haywood's Case, 94 N. C. 847, the court, upon suggestion of counsel, submitted an issue directed to the defendant's present insanity. This court ordered a new trial upon entirely different grounds. While, as suggested by Smith, C. J., it would have beenmore fitting that the suggestion of present insanity be first tried, he said that to try the question together with the issue of traverse was not error in law which would vitiate the verdict. In Vann's Case, 84 N. C. 722, the question of insanity, supported by affidavits, was made after conviction and upon motion for judgment. The court directed a jury to be impaneled to try the question. This course was approved by the court. "Although, if there be a doubt as to the prisoner's insanity at the time of his arraignment, he is not to be put upon trial until the preliminary question is tried by a jury, the question of the existence of such a doubt seems to be exclusively for the determination of the court. And counsel for the defendant can neither waive an inquiry as to the question of defendant's sanity, nor compel the court to enter upon such an inquiry, when no ground for doubting it appears. * * * And the question whether an inquiry is called for by the circumstances of the case is for the...