State v. Linney
| Decision Date | 05 January 1938 |
| Docket Number | 725. |
| Citation | 194 S.E. 470,212 N.C. 739 |
| Parties | STATE v. LINNEY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Frank S. Hill, Special Judge.
Tom Linney, alias Buffalo, and another were convicted of murder in the first degree, and they appeal.
No error.
If the grand jury which returns a bill of indictment was improperly drawn, advantage of that fact must be taken by motion to quash, upon proper averment and proof, before arraignment and plea.
The defendants were charged in the bill of indictment with the murder of one Herman W. Fogleman. The State's evidence tended to show that on the evening of April 5, 1937, the deceased, an insurance collector, had parked his automobile on a street in a negro section of the city of Winston-Salem and had gone into a nearby house; that as deceased returned from the house to his automobile a man identified as defendant Linney stepped from an alley and struck him on the head with a pistol and fired two shots, and deceased fell to the ground on his side; that thereupon another man identified as defendant Jefferson stepped out of the same alley and fired three shots into the deceased, lying on the ground pushed him into a mud hole, pulled something from his side and that then both defendants stepped back in the alley and ran. Deceased was dead when the officers arrived.
The defendants denied guilt and offered evidence tending to show that each of them was elsewhere at the time, and that they were not and could not have been the persons guilty of slaying the deceased.
The jury returned a verdict of guilty of murder in the first degree as to both defendants, and from judgment pronouncing sentence of death, defendants appealed.
Phin Horton, S.E. Edwards, and T. Hardin Jewett, all of Winston-Salem, for appellants.
A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.
The appellants contest the validity of the trial and judgment below on three grounds:
1. They assign as error the denial of their motion in arrest of judgment on the ground that the minute docket failed to show the selection of the grand jury in the manner prescribed by the statute. However, the record before us shows the organization of the court, the names of the jurors summoned for the term, the names of the foreman and seventeen other grand jurors drawn therefrom, "then and there impaneled, sworn and charged," as such, and that during the term the grand jury duly returned into open court a true bill of indictment against the defendants for murder, in the form set out verbatim in the record, the bill showing the indorsement of the names of the state's witnesses sworn and examined, and the statement over the signature of the foreman of the grand jury that it was a true bill.
If the grand jury was improperly drawn, of which there is no suggestion, advantage of that fact should have been taken by motion to quash, upon proper averment and proof, before arraignment and plea.
There was no such defect appearing affirmatively on the face of the record as would entitle the defendants to have the judgment arrested and their motion was properly denied. State v. Bordeaux, 93 N.C. 560; State v. Efird, 186 N.C. 482, 119 S.E. 881; State v. Grace, 196 N.C. 280, 145 S.E. 399; State v. McKnight, 196 N.C. 259, 145 S.E. 281; State v. Bittings, 206 N.C. 798, 175 S.E. 299; State v. Puckett, 211 N.C. 66, 189 S.E. 183.
2. The defendants contend that the court erred in treating the bill, and so charging the jury, in effect, as if it contained two counts, and that since the bill charged a murder committed in the perpetration or attempt to perpetrate a robbery, the allegations in the bill of willfulness, deliberation, and premeditation were improperly submitted to the jury.
The bill of indictment set out the crime charged in the following language: "The jurors for the State upon their oath do present, that Tom Linney, alias Buffalo, and T. J. Jefferson late of Forsyth County, on the 5 day of April, A. D. 1937, with force and arms, at and in the aforesaid County, did unlawfully, wilfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, did kill and murder Herman W. Fogleman, while in the act of robbing the said Herman W. Fogleman, contrary to the form of the statute in such case made and provided and...
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State v. Godwin
... ... defendant. The defendant complains that the Court below ... failed to declare and explain the law arising thereon, as the ... Court omitted in its charge to the jury to define robbery, ... etc. We cannot so hold. State v. Puckett, 211 N.C ... 66, 189 S.E. 183; State v. Linney, 212 N.C. 739, 194 ... S.E. 470. The evidence and charge fully set forth the offense ... with which defendant was charged and if defendant wanted the ... charge more in detail on the matters complained of, he should ... have submitted prayers for instructions. If any of the ... contentions ... ...
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State v. Hill, 2
...indictment and evidence disclose a killing in the perpetration of a robbery, only one of such verdicts may be returned. State v. Linney, 212 N.C. 739, 194 S.E. 470; State v. Myers, 202 N.C. 351, 162 S.E. 764; State v. Spivey, 151 N.C. 676, 677, 65 S.E. 995. These cases were decided before t......
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State v. Alston
...under the evidence the court might well have limited the jury to a consideration of the capital offence or an acquittal. State v. Linney, 212 N.C. 739, 194 S.E. 470. As reversible error has been made to appear, the verdict and judgment will be upheld. No error. ...
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State v. Diliard
... ... which appears, or for the omission of some matter which ought ... to appear, on the face of the record, creating a vital defect ... in some phase of the proceeding. State v. McKnight, ... 196 N.C. 259, 145 S.E. 281, and cases cited; State v ... Linney, 212 N.C. 739, 194 S.E. 470; State v ... Brown, 218 N.C. 415, 11 S.E.2d 321 ... Here ... no defect appears. A verdict of guilty was rendered. Upon ... being polled, the jurors, each for himself, stated that it ... related to the first count. It was so entered. As to that ... ...