State v. Oakes
| Decision Date | 10 December 1958 |
| Docket Number | No. 580,580 |
| Citation | 249 N.C. 282,106 S.E.2d 206 |
| Parties | STATE, v. Roy Franklin OAKES. |
| Court | North Carolina Supreme Court |
Adam Younce, Greensboro, for defendant-appellant.
Malcolm B. Seawell, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.
For error in the course of the trial of this case in Superior Court, as revealed on the face of the case on appeal, this Court is impelled, ex mero motu, to order a new trial. State v. McCoy, 236 N.C. 121, 71 S.E.2d 921, and numerous other cases of like import.
The error arises in this manner. The trial judge correctly charged that where a verdict of guilty of murder in the first degree shall have been reached by the jury, it has the unbridled discretionary right to recommend that the punishment for the crime shall be imprisonment for life in the State's Prison,--instructing the jury that there are no conditions attached to and no qualifications or limitations imposed upon the right of the jury to so recommend, in keeping with the provisions of G.S. § 14-17, Sec. 1 of Chapter 299 of 1949 Sessions Laws of North Carolina. See State v. Denny, 249 N.C. 113, 105 S.E.2d 446, 449, and cases there cited.
And as stated in the Denny case, supra, quoting from State v. McMillan, 233 N.C. 630, 65 S.E.2d 212,
But when the trial judge came to state the contentions of the State these statements appear:
And again, 'The State says and contends that your verdict should be guilty of murder in the first degree and that you should not recommend that his punishment should be imprisonment for life in the State's Prison * * *.'
And even though on appeal to this Court there is no exception to either of the statements of contentions of the State, it is manifest that the statements run counter to the statute G.S. § 14-17. Error is clear, and this Court, of its own motion, must declare. For in capital cases the Supreme Court will review the record and take cognizance of prejudicial error ex mero motu.
Moreover, there are several assignments of error based upon exceptions to matters occurring in the trial below, some of which merit attention since the case goes back for a new trial.
1. Defendant contends that the court erred in permitting the State to offer in evidence a peace warrant together with affidavit of Alice Oakes, the deceased, upon which the warrant was issued. It is argued that the statements and allegations therein are purely hearsay--that they were not made in his presence, and he had no opportunity to confront or to cross-examine the complainant with reference to the matters alleged.
The Court is of opinion that the exception has merit. See Stansbury on North Carolina Evidence, Sections 138-139. True ...
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...and premeditated purpose to kill. State v. Shelton, 164 N.C. 513, 79 S.E. 883 (1913)[, overruled on other grounds by State v. Oakes, 249 N.C. 282, 106 S.E.2d 206 (1958) ]. In absence of some evidence of intoxication to such degree, the court is not required to charge the jury thereon. State......
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State v. Atkinson, 22
... ... We find no such provision in either Constitution ... Review Of The Record Ex Mero Motu ... It has long been the rule of this Court that 'in capital cases the Supreme Court will review the record and take cognizance of prejudicial error Ex mero motu.' See State v. Oakes, 249 N.C. 282, 106 S.E.2d 206. We have reviewed the entire record in this case, without limitation to the assignments of error made by the defendant ... The defendant has been represented throughout this proceeding with diligence and skill by two able attorneys, experienced in ... ...
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State v. Robinson
...affidavit are hearsay statements which deprive the accused of his rights of confrontation and cross-examination. See State v. Oakes, 249 N.C. 282, 106 S.E.2d 206 [1958]. State v. Spillars, 280 N.C. 341, 352, 185 S.E.2d 881, 888 (1972). See also State v. Edwards, 315 N.C. 304, 337 S.E.2d 508......