State v. McKinnon

• Decision Date: 19 May 1943
• Docket Number: 579.
• Citation: 25 S.E.2d 606,223 N.C. 160
• Parties: STATE v. McKINNON et al.
• Court: North Carolina Supreme Court

25 S.E.2d 606

223 N.C. 160

STATE v. McKINNON et al.

No. 579.

Supreme Court of North Carolina

May 19, 1943

Criminal prosecution upon an indictment charging the defendants with the murder of one Frank Merritt.

The record states the jury was chosen, sworn and empaneled, but is silent as to the plea except as stated in the charge of the Court. His Honor charged the jury: "To this bill of indictment and to these degrees of unlawful homicide, the defendants and each of them pleads not guilty."

Evidence for the State in the trial below tends to show that Ida White and Gladys Minter McKinnon met at a beauty parlor, located in the colored section of Aberdeen and across the street from the home of Cornelia Minter, where Gladys Minter McKinnon lived. A quarrel ensued which resulted in an affray. The fighting took place in the street near the Minter home and several other parties joined therein. As a result of the affray both Ida White and Gladys Minter McKinnon received knife wounds.

Frank Merritt lived next to the Minter home. He and Ida White were sweethearts. He came across the yard and said: "Ida, who cut you?" Ida answered: "Lillian". Merritt took a few steps, and Gladys Minter McKinnon said: "What the hell you want? You want to take it up too?" Merritt answered: "No, I want to get them off of Ida"; and she said: "Shoot the s.o.b."; and Henry Kendrick fired a pistol and Frank Merritt fell on his face and died almost instantly.

Verdict "That the defendants are guilty of murder in the second degree, with recommendations of mercy of the Court."

Judgment Imprisonment in the State's Prison for a period of eighteen to twenty years.

The defendants appeal, assigning error.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Mosely G. Boyette, of Carthage, for defendants.

DENNY Justice.

Exceptions Nos. 1 and 8 are directed to the refusal of the Court below to grant the defendants' motions for judgment as of nonsuit at the close of the State's evidence and at the close of all the evidence.

The defendants contend there is no evidence that Frank Merritt died as a result of the pistol fired by Henry Kendrick. That no witness testified that the pistol shot caused the death of the deceased. Therefore, the motion for judgment as of nonsuit should have been granted as to both defendants. While the record does not disclose the testimony of any witness to the effect that Frank Merritt came to his death as a result of the pistol shot fired by the defendant Henry Kendrick, it does disclose, by evidence of witnesses for the State and the defendants, that the deceased was shot with a pistol by the defendant Henry Kendrick, who was aided and abetted by the defendant, Gladys Minter McKinnon; that the pistol was fired only a few feet from the deceased; that the deceased fell as soon as the pistol was fired; that his friends and relatives rushed to him and found blood pouring from his mouth and nose; that shortly thereafter he died; that there was only one wound on the body and that only one shot was fired. In addition to this testimony, the County Coroner testified he made an examination of the body of the deceased and found a pistol bullet wound in his body two or three inches below the collar bone and about three inches to the right of the center of the chest. That he probed the wound and it ranged downward. "I would say it went through the heart."

Cornelia Minter, a witness for the defendants, testified: "He was killed in the yard. *** This boy was killed and fell right in front of me, right in front of the steps."

There can be no serious doubt in the light of the testimony on this record, as to the cause of the death of Frank Merritt. State v. Smith, 221 N.C. 278, 20 S.E.2d 313.

Upon a motion for judgment as of nonsuit at the close of the State's evidence and renewed by the defendant after the introduction of his own evidence, all the evidence upon the whole record tending to sustain a conviction will be considered in a light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Brown, 218 N.C. 415, 11 S.E.2d 321; State v. Hammonds, 216 N.C. 67, 3 S.E.2d 439; State v. Everhardt, 203 N.C. 610, 166 S.E. 738; State v. Casey, 201 N.C. 185, 159 S.E. 337; State v. Lawrence, 196 N.C. 562, 146 S.E. 395.

The defendants' exception No 14 is to that portion of his Honor's charge as follows: "And that it becomes your duty to look into and very carefully scrutinize his or her testimony." The defendants contend the use of the word "very" in the above instruction was prejudicial. We do not think so, since his Honor used the following language immediately thereafter: "But the law, being based on common sense and reason, says that after you do that and find that a defendant is telling the truth, then it is your duty to give to his or her evidence the same weight and credibility as you would to that of a disinterested witness." We think the instruction given is not violative of the decisions of this Court. In State v. Holland, 216 N.C. 610, 6 S.E.2d 217, 220, it is said: "Since the adoption of the statute, permitting a defendant to testify in his own behalf it has been held that it is not improper, when the defendant has testified in his own behalf, for the presiding Judge, in his charge, to instruct the jury that his testimony should be taken 'with a grain of allowance'; State v. Green, 187 N.C. 466, 122 S.E. 178; State v. Nat, 51 N.C. 114; that his testimony should be received with caution and scrutinized with care; State v. Williams, 185 N.C. 643, 116 S.E. 570; State v. Barnhill, 186 N.C. 446, 119 S.E. 894; State v. Byers, 100 N.C. 512, 6 S.E. 420, supra; State v. Lance, 166 N.C. 411, 81 S.E. 1092; 'is regarded with suspicion'; State v. Lee, 121 N.C. 544, 28 S.E. 552; State v. Boon, 82 N.C. 637, 638; State v. Holloway, 117 N.C. 730, 23 S.E. 168. When this is done the court should further instruct the jury, in substance, that after so weighing and considering the testimony of the defendant the jury should give his testimony such weight as it considers it is entitled to, and if the jury believes the witness it should give his testimony the same weight it would give the testimony of any other credible witness. State v. Holloway, supra; State v. Collins, 118 N.C. 1203, 24 S.E. 118; State v. McDowell, 129 N.C. 523, 39 S.E. 840; State v. Lee, supra; State v. Barnhill, supra; State v. Williams, supra; State v. Green, supra."

Clark, C.J., said, in State v. Green, supra [187 N.C. 466, 122 S.E. 179]: "There is no hard and fast form of expression or consecrated formula required, but the jury should be instructed that, as to the testimony of relatives or parties interested in the case and defendants, the jury should scrutinize their testimony in the light of that fact, but if, after such scrutiny, the jury should believe that the witness has told the truth, they should give him as full credit as if he were disinterested."

The above statement, in substance, was cited with approval in State v. Holland, supra. We do not think this pronouncement of the Court bearing on the testimony of relatives or parties interested in the case and defendants, was intended to approve undue emphasis by the trial Court on the scrutiny or care to be exercised by the jury in considering such evidence. We doubt the wisdom of charging the jury that such testimony should be "regarded with suspicion" or taken "with a grain of allowance." In fact it is not mandatory on the trial Judge to charge the jury in this respect, but, under our decisions, it is permissible to do so and seems to be the uniform practice, but in so doing, we think the better rule or formula would be to limit the charge in this respect to language substantially in accord with that quoted above from the case of State v. Green. Even under that pronouncement, we must concede that our Court has recognized and through its decisions approved, a practice which was not contemplated by the Statute authorizing defendants in criminal actions to testify in their own behalf if they wish to do so. C.S. § 1799. In the case of State v Wilcox, 206 N.C. 691, 175 S.E. 122, 123, Justice Brogden, speaking for the Court, said: "The common law regarded the testimony of a defendant in criminal actions as incompetent upon the theory, among others, that the frailty of human nature and the overpowering desire for freedom would ordinarily induce a person charged with crime, if permitted to testify, to swear falsely. It could not conceive of a person 'that sweareth to his own hurt and changeth not.' Psalms 15:4. This idea of excluding the testimony of defendants in criminal actions prevailed in this state until 1881, when the Legislature enacted chapter 110, Public Laws of 1881, now C.S. § 1799 (Michie's Code, § 1799). This statute was first construed by the Supreme Court in State v. Efler, 85 N.C. 585. The court said: 'The statute of 1881, c. 110, § 2, provides that in the trial of all indictments against persons charged with the commission of crimes in the several courts of the state, the person charged shall at his own request, but not otherwise, be a competent witness, and the question is as to the effect upon the rights of a defendant who sees proper to avail himself of the privilege. In declaring him to be "a competent witness" we understand the statute to mean that he shall occupy the same position with any other witness, be under the same obligation to tell the truth, entitled to the same privileges, receive the same protection, and equally liable to be impeached or discredited. Unless willing to become a witness, he is invested with a presumption of innocence, such as the law makes in favor of every...