State v. Mays

• Decision Date: 17 October 1945
• Docket Number: 221
• Citation: 35 S.E.2d 494,225 N.C. 486
• Parties: STATE v. MAYS.
• Court: North Carolina Supreme Court

35 S.E.2d 494

225 N.C. 486

STATE v. MAYS.

No. 221

Supreme Court of North Carolina

October 17, 1945

Criminal prosecution tried on bill of indictment charging the defendant with the murder of one Mattie L Salmon.

The deceased, about 75 years of age, lived alone in a four-room house. On the morning of 17 June 1945 she was found lying on her bed dead. Her clothing was pulled up about her shoulders most of her body was exposed, and her bed was 'all torn up.'

'Her body was turned slightly to the left side, with her head towards the head of the bed, on the pillow, with her right limb drawn up slightly, her lower limb. Her hands were up not over her head but in an upright position. Her mouth had bruise areas all the way around and there were abrasions on her lower and upper lips, bleeding slightly from the lips. The abrasions and bruises were entirely around her mouth, the worst part being on left corner and lower lip. There wasn't anything in her mouth, no foreign substance, but this dress was over her mouth and shoulder, right shoulder. This dress here, this bloody part, was over her mouth and right shoulder. No part of it was in her mouth. The blood was on that area adjacent to her mouth, was directly over it. '* * * Her arms, wrists and elbows were drawn up, some bruises on her arms and wrists, skin not broken but bluish area.'

The wounds about her mouth were produced by pressure as if something were being pressed in her mouth.

A post-mortem examination disclosed bruises, abrasions, and tears, and the presence of spermatozoa.

There was evidence that one of the screen windows had been torn from its fastening and was placed loosely in the window. Tracks were found leading to and from the house. When compared, they appeared to have been made by the shoes of defendant. There was evidence of other facts and circumstances, including the testimony of two physicians that deceased died from suffocation.

When defendant was arrested he made a detailed statement, the substance of which was consistent with the facts and circumstances testified to by State witnesses. He admitted he broke and entered the home of deceased and criminally assaulted her and that in so doing he crammed a cloth or dress in her mouth. He said that when he left he did not know she was dead.

Testifying in his own behalf, he denied that he knew the deceased or had ever been to her home or that he committed the crime charged. He also denied having made any of the incriminating statements about which the officer testified. He also offered evidence tending to show that he 'does not have the sense of a man,' 'of an average white man,' and 'he has the mind of a 10 or 12 year old boy. ' He is ignorant and unlettered.

There was a verdict of 'guilty of murder in the first degree ' The court pronounced sentence of death and defendant appealed.

Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes, Ralph M. Moody, and J. E. Tucker, Asst. Attys. Gen., for the State.

E. L. Gavin and D. B. Teague, both of Sanford, for defendant appellant.

BARNHILL Justice.

Dr. J. F. Foster examined the body of the deceased and being asked his opinion as to the cause of death he replied, 'My opinion is that she died from suffocation from the dress being crammed over her air passages. ' Foundation was laid for the question which elicited this response.

Expert testimony as to the cause of the death was competent. Frequently it is the only available means of proving that fact. The question was proper and there was no objection to the answer or motion to strike the part thereof which undertook to give the means used. Defendant waived any grounds for objection to so much of the answer as may not be responsive to the question. State v. Lefevers, 216 N.C. 494, 5 S.E.2d 730; State v. Gooding, 196 N.C. 710, 146 S.E. 806; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726.

The confession was prima facie voluntary and admissible in evidence. State v. Grass, 223 N.C. 31, 25 S.E.2d 193; State v. Wagstaff, 219 N.C. 15, 12 S.E.2d 657. No fact or circumstance tending to impeach its voluntariness is made to appear. State State v. Exum, 213 N.C. 16, 195 S.E. 7; State v. Wagstaff, supra.

Photographs to illustrate the testimony of witnesses respecting wounds found on her body were competent. Being admitted, it was not improper to permit the jury to see them. Otherwise they would neither illustrate nor explain. State v. Shepherd, 220 N.C. 377, 17 S.E.2d 469; State v. Miller, 219 N.C. 514, 14 S.E.2d 522; State v. Holland, 216 N.C. 610, 6 S.E.2d 217; State v. Jones, 175 N.C. 709, 95 S.E. 576. See also Janovich v. State, 32 Ariz. 175, 256 P. 359, where the facts were similar.

Exception for that the court admitted testimony as to the similarity of the footprints of defendant and certain prints found at and about the premises cannot be sustained. The condition of the prints only goes to the weight of the evidence. State v. Lowry, 170 N.C. 730, 87 S.E. 62; State v. McLeod, 198 N.C. 649, 152 S.E. 895.

It was likewise permissible for the State to offer in evidence a cast or moulage of such footprints. This is just another way of recording, portraying or 'photographing' the appearance, shape, form and contour of this particular type of object. Haley v. State, 84 Tex.Cr.R. 629, 209 S.W. 675, 3 A.L.R. 779; State v. Simons, 172 Wash. 438, 20 P.2d 844.

'A murder * * * which shall be committed in the perpetration or attempt to perpetrate any * * * rape * * * shall be deemed to be murder in the first degree * * *. ' G.S. s 14-17. When a...