State v. Neville

• Citation: 95 S.E. 55,175 N.C. 731
• Decision Date: 20 February 1918
• Docket Number: 241.
• Parties: STATE v. NEVILLE.
• Court: North Carolina Supreme Court

95 S.E. 55

175 N.C. 731

STATE v. NEVILLE.

No. 241.

Supreme Court of North Carolina

February 20, 1918

Appeal from Superior Court, Wake County; Connor, Judge.

Earle Neville was convicted of rape, and sentenced to death, and he appeals. Affirmed.

Clark C.J., dissenting in part.

W. B Jones and A. T. Shaw, both of Raleigh, for appellant.

The Attorney General and R. H. Sykes, of Durham, for the State.

CLARK C.J.

The crime of which the prisoner was charged and convicted was committed on Mrs. Sybil Sealey at her residence in the suburbs of the city of Raleigh on the night of September 19 1917. She testified that she was alone with her three young children about 11 o'clock at night, her husband not being at home. It is unnecessary to narrate the details further than to point the exceptions of law which are presented for our consideration.

The counsel for the prisoner, in the argument here, presented with ability and forcefully the objections urged in behalf of their client. But after giving full consideration to their argument we are convinced that the prisoner has had a fair trial and that there is no just ground for exception.

The exception chiefly pressed is that the prisoner was taken to the home of the woman assaulted the day following the crime and placed in a position at the window which corresponded to the position in which the party committing the crime according to testimony of Mrs. Sealey, was standing just prior to the commission of the crime; and in that position he was identified by her. The argument for the prisoner is that, being placed in such position, he was forced to furnish evidence against himself in violation of his constitutional rights and privileges. This proposition, however, has been repeatedly decided against such contention in this and other courts. It was no more a violation of the constitutional rights of the prisoner to present him to Mrs. Sealey for identification in the place where the perpetrator stood than to make him stand up in court for the same purpose. Indeed, it was fairer to him to present him to her amid the surroundings where the occurrence took place. Moreover, unless she identified him, there was no ground to hold him in jail. The correctness of her identification was a matter for the jury.

In State v. Graham, 74 N.C. 646, 21 Am. Rep. 493, Judge Rodman, for the court, said:

"The first exception is because the judge permitted the officer who had the prisoner in custody to testify that he made the prisoner put his foot in the tracks found in the prosecutor's field, and that his foot fitted the tracks perfectly. It is argued that making the prisoner put his foot in the track was procuring evidence by duress, and the case of State v. Jacobs, 5 Jones, 259 [, is cited. The object of all evidence is to elicit the truth. Confessions which are not voluntary, but are made either under the fear of punishment if they are not made, or in the hope of escaping punishment if they are made, are not received as evidence, because experience shows that they are liable to be influencd by those motives, and cannot be relied on as guides to the truth. But this objection will not apply to evidence of the sort before us. No fears or hopes of the prisoner could produce the resemblance of his track to that found in the cornfield. This resemblance was a fact calculated to aid the jury and fit for their consideration."

"Evidence of this sort is called by the civilians 'real evidence,' is always admissible, and is of greater or less value according to the circumstances. In Best on Evidence, § 183, the following instances of its value are given: 'In a case of burglary, where the thief gained admittance into the house by opening the window with a penknife, which was broken in the attempt, and a part of the blade left sticking in the window frame, a broken knife, the fragment of which corresponded with that in the frame, was found in the pocket of the prisoner. So, where a man was found killed by a pistol, the wadding in the wound consisted of a part of a printed paper, the corresponding part of which was found in the pocket of the prisoner. In another case of murder, a patch on one knee of the prisoner's breeches corresponded with an impression found on the soil, close to the place where the murdered body lay. In a case of robbery, the prosecutor, when attacked, struck the robber on the face with a key, and a mark of a key with corresponding wards was visible on the face of the prisoner,' etc. Similar instances might be cited indefinitely. The exception, however, is that the officer made the prisoner put his foot in the track in order to test the resemblance. It has been seen that this could not alter the fact of the resemblance, which is the only matter that would have weight as evidence."

In State v. Thompson, 161 N.C. 238, 76 S.E. 249, the following testimony was found to be admissible:

"Clifford Fowler, witness for the state, testified in regard to the tracks found outside the window and to following them to the house of the prisoner. He stated that, when the coroner's jury was at the house of the deceased, the prisoner went to the house with his gun and was put in the tracks, and that the prisoner was of sufficient height to have fired the gun. He was then asked, 'Tell how the prisoner acted in taking these measurements,' to which witness answered, 'I like not to have got him up there; he didn't want to go there at all. Q. What did he do? A. Some one handed me a gun. I took him around to the window and handed him the gun. I said, "Sam, get up there; I want to see if you are high enough to do the shooting." I said, "You must take the gun." He did, and stepped up and put the gun over his shoulder. I said, "Put it to the shoulder just like you were going to shoot it." He fetched the gun up and did like this (witness crouches down). He put his feet within three or four inches of the track. I said, "Measure it and put your gun up there." The gun looked like it might have been that distance, about seven inches from the window. Q. State to the jury, after he put it on his shoulder and pointed, if you got behind and sighted to see where it sighted with reference to where deceased was sitting. A. It was on a line, and the shot was on the line.' * * *

The testimony of the constable, giving the result of the observation of the prisoner standing at the window and pointing his gun in the direction in which it is known that the deceased was at the time he was shot, is a physical fact or condition as to which he could testify as in the case of the comparison of shoes and footprints. Wigmore on Ev. §§ 2263, 2265."

State v. Graham, supra, was approved in State v. Mallett, 125 N.C. 725, 34 S.E. 651, which on writ of error was approved by the United States Supreme Court in 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015, which United States decision is printed in 128 N.C. 619. The above and other cases are cited with approval in State v. Lowry, 170 N.C. 733, 734, 87 S.E. 62.

Exception on this ground was not taken on the trial, but in our discretion we have permitted it to be entered here and argued.

The prisoner's counsel also urged that, when the prisoner was presented to Mrs. Sealey the same night the crime was committed, she was not so positive of his identity, but the next day, a crowd being present, she identified him fully. This was a matter for the jury, and was doubtless fully argued before them by his able counsel. The fact that when presented to her the first time she was not so clear as to the identity of the prisoner certainly is not a matter of which the prisoner can complain. It was to his interest, and not to his harm, that this matter was brought out. What she said on both occasions was competent to corroborate, or contradict, her testimony of identification of the prisoner at the trial.

Zilphia Jones, the witness for the prisoner, at whose house they found the hat or cap alleged to be worn by the prisoner at the time the crime was committed, testified regarding the premises where she lived, and stated that "nobody could have gotten in at the kitchen unless they had unlatched the door and pushed it open." The counsel for prisoner then proposed to ask this question, "Do you think you would have heard anybody there?" The court sustained the objection by the state and excluded the question. The witness had not qualified as an expert, and there was no ground to except her from the general rule that a witness may testify only to facts. State v. McLaughlin, 126 N.C. 1080, 35 S.E. 1037. She was not expressing an impression created on her mind as to what she saw (State v. McDowell, 129 N.C. 524, 39 S.E. 840), but was asked simply an abstract question, as to what she thought as to the extent to which sound could be heard at that place. Besides, there is not set out what answer the witness would have given nor its relevancy. State v. Rhyne, 109 N.C. 794, 13 S.E. 943. This and several other exceptions are abandoned by being omitted in the brief. Rule 34 (164 N.C. 551, 81 S.E. xii).

Exception 2 is that a witness on being asked as to the character of Olivia Baucom, a witness for the prisoner, stated that he had never heard any one say anything about her character. Counsel then asked, "You never heard her character discussed?" The court excluded this question, but the witness, being further questioned, stated that "her character was good." The court also properly excluded a question to the same witness as to the character of Olivia Baucom, "What did you hear your sister say about her?" Proof of character must be elicited by general questions, but not by specific statements (State v Hairston, 121 N.C. 579, 28 S.E. 492), nor can a party thus cross-examine his own witness. The other exceptions down...