State v. Murdock

• Decision Date: 19 April 1922
• Docket Number: 324.
• Parties: STATE v. MURDOCK.
• Court: North Carolina Supreme Court

111 S.E. 610

183 N.C. 779

STATE v. MURDOCK.

No. 324.

Supreme Court of North Carolina

April 19, 1922

Appeal from Superior Court, Durham County; Daniels, Judge.

Bud Murdock was convicted of manufacturing liquor, and he appeals. No error.

Where defendant had objected to the reference by the solicitor to his personal appearance, and the court had promised to correct the matter in his charge, a statement in the charge that the jury should not consider the physical appearance or personal peculiarities of the defendant observed by them was evidently directed to the improper comments of the solicitor where the record states that instruction was given in compliance with the judge's promise to defendant's counsel, and is presumed to have been sufficient under the circumstances, as they were known to the trial judge, to have removed the prejudicial effect of the argument.

Brawley & Gantt, of Durham, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

The defendant was convicted at the December term, 1921, of the superior court of Durham county, Judge Daniels presiding, of manufacturing liquor, and from the judgment upon such conviction, appealed to this court.

On the 23d of December, 1920, three officers of Durham county Belvin, Morgan, and Hall, went into Patterson's township in Durham county and discovered three men manufacturing liquor at a still. The officers went within 40 yards of the still, and observed the men for about 20 minutes. All of them recognized the defendant, Murdock, as one of the operators of the still. The defendant attempted to prove an alibi by two witnesses named Lowe, who were relatives.

One of the alleged errors was a remark made by the solicitor as he was closing his address to the jury, which was as follows:

"I do not know when I have seen a more typical blockader. Look at him, his red nose, his red face, his red hair and moustache. They are the sure signs. He has the earmarks of a blockader."

The judge was occupied at the time, and did not notice the remark, but, the matter having been called to his attention he stated that he would cure it in his charge, and the record further states as follows:

"The judge, in compliance with his intimation to counsel for the defendant and the solicitor, and for the purpose of complying with the objection or exception of defendant's counsel, and removing from the minds of the jury any unfavorable impression which may have been made by the comments of the solicitor upon the personal appearance of the defendant, charged the jury, as follows: The defendant did not go upon the stand to testify in the case. A statute passed by the Legislature, I think in 1879, gives the defendant the right to testify in his own behalf in a criminal case. Before that time he had no such right, but that same statute provides that, if he does not avail himself of this privilege, the jury is not to consider his failure to testify in any manner to his detriment. Nor are they to consider the physical appearance of the defendant in court nor any personal peculiarities of him observed by them. You are to pass on the case purely upon the evidence of the witnesses."

The comment of the solicitor upon the personal appearance and characteristics of the defendant was clearly improper, if not a serious breach of his privilege in discussing the case before the jury, but the judge attempted to correct, and we think he did correct, any wrong or injurious impressions made upon the jury, or we must take it that he did, as abuses of this sort, we have said in many cases, must be left largely to his sound discretion as to the method or manner he will adopt in protecting the rights of the defendant. We held in State v. Davenport, 156 N.C. 596, at page 597, 72 S.E. 7:

"Improper remarks made by counsel to the jury are not reversible error when it appears that the court has instructed the jury not to consider them, but to confine themselves in their consideration to the facts bearing upon the issues; and exception to the instructions not being more specific or full, must be taken by way of prayers for special instruction thereon. The trial judges are cautioned to immediately and fully correct abuses of

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