State v. Little

• Citation: 45 S.E.2d 542,228 N.C. 417
• Decision Date: 19 December 1947
• Docket Number: 726
• Parties: STATE v. LITTLE.
• Court: United States State Supreme Court of North Carolina

45 S.E.2d 542

228 N.C. 417

STATE v. LITTLE.

No. 726

Supreme Court of North Carolina

December 19, 1947

Criminal prosecution upon bill of indictment charging that defendant with force and arms, at and in Durham County 'feloniously, willfully, and of malice aforethought, did kill and murder Minnie Little, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State'.

On the trial below the State offered evidence tending to support the charge with which defendant stands indicted. On the other hand, defendant offered evidence tending to support his plea of not guilty by reason of his plea that he acted in selfdefense. And the case was submitted to the jury with instruction that the jury might, as it found the facts to be from the evidence under the charge of the court, return one of four verdicts--guilty of murder in the first degree, guilty of murder in the second degree, guilty of manslaughter, or not guilty.

Verdict Guilty of murder in the first degree as charged in the bill of indictment.

Judgment Death by the administration of lethal gas as provided by law.

Defendant appeals therefrom to Supreme Court and assigns error.

Harry M. McMullan, Atty Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

Fuller Reade & Fuller, of Durham, for defendant-appellant.

WINBORNE Justice.

Among the several assignments of error presented by appellant on this appeal, we deem it necessary to treat only two of them.

The first relates to denial of the motions of defendant for judgment as in case of nonsuit, G.S. s 15-173. As to this, without reciting the details leading up to and surrounding the homicide with which defendant is charged, it is sufficient to say that the evidence offered against defendant on the trial in Superior Court, as shown in the record on this appeal, taken in the light most favorable to the State, is sufficient to support a verdict of guilty of murder in the first degree.

The other relates to the action of the presiding judge in denying motion of defendant for a new trial because of prejudicial statements made by the solicitor for the State during the course of his argument to the jury.

The record discloses that, in making this motion, counsel for defendant, in pertinent part, stated to the court: 'That during the argument of the solicitor, he stated to the jury that in all first degree cases where men were convicted there would be an appeal to the Supreme Court, and that in this case, if this defendant were convicted there would be an appeal to the Supreme Court, and that in the event the decision of the lower court should be affirmed, there would be an appeal to the Governor to commute the sentence of the prisoner; and that not more than sixty per cent of prisoners convicted of capital offenses were ever executed'.

And the record further shows that, in response to suggestion by the court that counsel for defendant had opened the door, Mr. Reade, of counsel for defendant, stated that he said in arguing the case to the jury, 'that if your Honor should inadvertently commit error in the trial of the case, the prisoner might appeal to the Supreme Court, and that if the Court found that you had committed error, the Supreme Court would award a new trial only for errors of law committed in the trial of the case; and further said that the Supreme Court could not and would not undertake to correct errors of judgment on the part of jurors, and that if your Honor had not committed error in the trial of the case, the Supreme Court would leave the defendant as they found him, so far as the verdict of the jury was concerned. I further stated that, having appealed to the highest court in the State, in the event the conviction was affirmed the only appeal the prisoner would then have would be to the Governor, who alone might undertake to correct errors of judgment on the part of the jury, if it was made to appear to him that an injustice had resulted'.

Then the record shows that the court interposed the following: 'I knew that you said Governor--I was under the impression that you said the Governor or the Parole Officer '. And, then, Mr. Reade continued, 'I would not say that I did not, but what I was undertaking to do was impress, as forcefully as possible, upon the jury, that they were the sole judges of the facts, and that the court would not undertake to correct errors of judgment as to what facts were found to be by the jury'.

And the record further shows the following ruling of the court on the said motion of defendant: 'The Judge was on the bench when Mr. Reade made his argument to the jury and the Court finds as a fact that he made the argument substantially as set forth in his statement to the Court on this motion in respect to that point in his speech to the jury. After Mr Reade made his speech, the Judge stepped into the library off the court room, which has a door opening into the Bar and is not over twenty feet from the bench. The Court was there consulting the North Carolina Reports when Mr. Reade and Mr. Fuller came to the Judge and told him the argument that the Solicitor was making, as set forth substantially in Mr. Reade's statement above. The Court stated to Mr. Reade and Mr. Fuller that if they so requested, he would go back to the bench, stop the Solicitor's argument and instruct the jury to disregard his argument that in sixty per cent of the capital cases the sentence was commuted and the men did not suffer death when convicted of a capital offense but that the rest of the Solicitor's argument the Court deemed to be proper in reply to the argument that Mr. Reade had made; whereupon Mr. Reade and Mr. Fuller stated that they did not desire the Court to go back and stop the Solicitor's argument. The Court, after looking at some of the North Carolina Reports, returned to the court room and his seat upon the bench. After the Solicitor had completed his speech, he having...