State v. Matthews

• Decision Date: 30 October 1906
• Citation: 55 S.E. 342,142 N.C. 621
• Parties: STATE v. MATTHEWS.
• Court: North Carolina Supreme Court

55 S.E. 342

142 N.C. 621

STATE v. MATTHEWS.

Supreme Court of North Carolina

October 30, 1906

Appeal from Superior Court, Guilford County; Ferguson, Judge.

J. B Matthews was convicted of murder in the second degree, and he appeals. Affirmed.

Guthrie & Guthrie and Stedman & Cooke, for appellant.

The Attorney General and Walter Clark, Jr., for the State.

CLARK C.J.

The prisoner, indicted for the murder of his wife, was convicted of murder in the second degree. His counsel quote as the settled ruling of this court that ""upon appeal from a conviction for a lesser offense than that charged in the indictment, a new trial, if granted, must be upon the full charge in the bill," and cite the cases to that effect, beginning with State v. Stanton, 23 N.C 424, and since State v. Grady, 83 N.C. 643; State v. Craine, 120 N.C. 601, 27 S.E. 72; State v. Groves, 121 N.C. 568, 28 S.E. 262; State v Freeman, 122 N.C. 1012, 29 S.E. 94; State v Gentry, 125 N.C. 733, 34 S.E. 706, and say that the prisoner abandons all exceptions for which a new trial may be asked, and "confines his appeal solely to a motion in arrest of judgment for matters appearing of record." The statement of law, as to the rulings of this court is correct. The Supreme Court of the United States, in a very recent case (Trono v. U. S., 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292), has reviewed the authorities, and sustained the principle that a new trial in a capital case goes to the whole case, regardless of the former verdict. It is in the election of an appellant to abandon here any exceptions, which, out of abundant caution, he may have taken below, and which, upon reflection, he thinks he should not press in this court. This course has been often suggested and recommended by this court, that counsel should "sift out and abandon those (exceptions) which, on deliberation, they find trivial and untenable. This would aid the court to a just consideration of the appeal by directing its attention to what counsel deem the fatal errors only, which, in the vast majority of cases, can be presented by a very few exceptions." Pretzfelder v. Insurance Co., 123 N.C. 167, 31 S.E. 470, 44 L. R. A. 424.

The record shows simply an indictment for murder in the form prescribed by Revisal 1905, § 3245 (which does not set out the means used), and a verdict thereon of murder in the second degree. Revisal 1905, § 3269, provides: "Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime or of an attempt to commit the crime so charged or of an attempt to commit a less degree of the same crime." Revisal 1965, § 3271, provides that "the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree." Upon the record there is an indictment for murder and a conviction of murder in the second degree as authorized by statute. There is no ground in the record on which to base the prisoner's motion to arrest the judgment. The prisoner contends, however, that it appears from the case on appeal and the evidence sent up therein that the indictment was for murder by poisoning, and that, from the nature of the case, this must be murder in the first degree. The "case on appeal" is a part of the transcript on appeal, and is a narrative of such matters which took place at the trial as are pertinent to the exceptions taken. It is no part of the record proper. Thornton v. Brady, 100 N.C. 38, 5 S.E. 910 (which has been often approved) defines the ""record" as embracing only the summons or indictment, pleadings (in civil cases), verdict, and judgment. But if the indictment had charged "poisoning" as the means by which the prisoner had committed the murder, the motion to arrest the judgment would be no better founded. Revisal 1905, § 3631, enumerates the instances of murder in the first degree as follows: "A murder which shall be perpetrated by means of poison, lying-in-wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree." The above-cited sections of Revisal 1905, § 3269, authorizing a jury to return a verdict for a lesser degree of any offense on an indictment for a greater, and section...