State v. Norton
| Decision Date | 16 December 1942 |
| Docket Number | 580. |
| Citation | 23 S.E.2d 301,222 N.C. 418 |
| Parties | STATE v. NORTON. |
| Court | North Carolina Supreme Court |
Harry McMullan, Atty. Gen., and G.B. Patton and Hughes J. Rhodes Asst. Attys. Gen., for the State.
Thos J. Dunn, of Laurinburg, for defendant appellant.
There are two questions for decision:
First Is there error in refusing motion for judgment as of nonsuit at close of all the evidence under provisions of C.S. § 4643?
Appellant concedes that, if testimony of his co-defendant, Liston Carter, and his witnesses, be taken into consideration in passing upon the motion, the evidence against him, Hector Norton, presents a case for the jury. He contends, however, that in view of the fact that he is charged in separate bill of indictment from that against his co-defendant, Liston Carter, the consolidation of the cases for purpose of trial should not deprive him of the right to nonsuit, upon the evidence offered by the State supplemented by such of his own testimony, and inferences therefrom, as are favorable to the State. The position is untenable.
In the first place, defendant has not challenged the consolidation of the two indictments for trial. The offenses charged are of the same class, relate to an assault upon the same person, and appear to be so connected in time and place as that evidence at the trial upon one of the indictments would be competent and admissible at the trial of the other. In such cases there is statutory authority for consolidation. C.S. § 4622; State v. Combs, 200 N.C. 671, 158 S.E. 252; State v. Rice, 202 N.C. 411, 163 S.E. 112; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250, and numerous cases there cited.
In State v. Combs, supra [200 N.C. 671, 158 S.E. 254], it is said: "The court is expressly authorized by statute in this state to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others".
Furthermore, ordinarily, a defendant in a criminal action is competent and compellable to testify for or against a codefendant, provided his testimony does not incriminate himself. State v. Smith, 86 N.C. 705; State v. Weaver, 93 N.C. 595, 596; State v. Medley, 178 N.C. 710, 100 S.E. 591; State v. Perry, 210 N.C. 796, 188 S.E. 639.
Moreover, in the present case not only did the co-defendant of appellant testify, but others not interested in the event of the action testified against him.
It is also provided by statute, C.S. § 4643, as construed by decisions of this Court, that when on trial of a criminal action in the Superior Court, or in any criminal court, the State has produced its evidence and rested its case, and defendant has preserved exception to the refusal of the court to allow his motion then made for judgment as in case of nonsuit, and, after offering evidence, and the case is closed, defendant renews his motion for judgment as in case of nonsuit, the court must act upon the latter motion in the light not only of evidence offered by the State, but of all of the evidence then before the court. C.S. § 4643; State v. Killian, 173 N.C. 792, 92 S.E. 499; State v. Pasour, 183 N.C. 793, 111 S.E. 779; State v. Earp, 196 N.C. 164, 145 S.E. 23.
In such case defendant is entitled to the benefit only of exception to the refusal of the latter motion. C.S. § 4643. State v. Brinkley, 183 N.C. 720, 110 S.E. 783.
Second: Did the court err when, in answer to this question of the jury, speaking through its foreman, "Can we render a verdict on one and not decide on the other ***?", the court replied, "No, you cannot"? The instruction standing alone is erroneous. The Attorney General concedes this, but earnestly contends (1) that if it be considered with other portions of the instructions, no...
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