State v. Ormond

• Decision Date: 07 April 1937
• Docket Number: 291.
• Citation: 191 S.E. 22,211 N.C. 437
• Parties: STATE v. ORMOND.
• Court: North Carolina Supreme Court

191 S.E. 22

211 N.C. 437

STATE v. ORMOND.

No. 291.

Supreme Court of North Carolina

April 7, 1937

Appeal from Superior Court, Pitt County; Clawson L. Williams, Judge.

Arthur Ormond was convicted of committing a homicide while unlawfully, willfully, and feloniously operating an automobile on the public highway in a reckless and careless manner, and he appeals.

No error.

Admission of testimony which was corroborative of testimony properly admitted held not prejudicial.

The defendant was indicted on the following bill of indictment "The Grand Jurors for the State upon their oath present That Arthur Ormond, late of the County of Pitt, on the 19th day of April, A. D., 1936, with force and arms, at and in the County aforesaid, unlawfully, wilfully and feloniously did operate an automobile on the public highway in a reckless and careless manner and while so doing unlawfully, wilfully and feloniously did in and upon one Bernice Haddock with a certain deadly weapon, to-wit: an automobile, kill and slay contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.D M. Clark, Solicitor."

The defendant entered a plea of not guilty.After hearing the evidence and charge of the court, the jury returned into open court and said for their verdict: "Defendant is guilty."Defendant moved for a new trial and for arrest of judgment.The motion was denied and the defendant excepted and assigned error.Thereupon the court, on January 30, 1937, entered judgment as follows: That the defendant be confined in the State's Prison for a term of not less than seven years nor more than ten years.It was in evidence that the general reputation of defendant was bad and he had theretofore served a sentence on a whiskey charge and had committed other offenses.

To the foregoing judgment the defendant excepted, assigned error, and appealed to the Supreme Court.

A. B. Corey and Albion Dunn, both of Greenville, for appellant.

A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.

CLARKSON Justice.

In the record it appears that defendant did not make in the court below a motion as in case of nonsuit or to dismiss.N.C.Code 1935(Michie)§ 4643.

In Jones v. Ins. Co.,210 N.C. 559, 561, 187 S.E. 769, 770, is the following: "The record discloses that no motion for judgment as in case of nonsuit was lodged 'when the plaintiff introduced his evidence and rested his case,' but was lodged for the first time 'after all the evidence on both sides is (was) in.'The defendant thereby lost his right under C.S. § 567, to demur to the evidence.'The motion (for judgment as in case of nonsuit) cannot primarily come at the close of all the evidence.It must be made initially at the close of the plaintiffs' evidence, and, if the motion is refused, there may be an exception and appeal.But, if evidence is offered by defendant, the exception is waived.At the end of all the evidence the exception may be renewed, but not then made for the first time.'Nowell v. Basnight,185 N.C. 142, 147, 116 S.E. 87, 89, and cases there cited."

This section serves, and was intended to serve, the same purpose in criminal prosecutions as is accomplished by section 567, in civil actions.State v. Fulcher,184 N.C. 663, 665, 113 S.E. 769.A motion for judgment of nonsuit under this section must be made at the close of the State's evidence in order for a motion thereunder made at the close of all the evidence to be considered.State v. Norris,206 N.C. 191, 173 S.E. 14.

Defendant requested no prayer for instruction to the effect that the evidence was not sufficient to be submitted to the jury.From the well-settled law in this jurisdiction, the defendant has now waived his right to contend that there was no evidence sufficient to be submitted to the jury on the indictment.The defendant contends that on the trial errors were committed:

(1)The defendant excepted and assigned error (which cannot be sustained) to the following evidence of the witness C. R Williams: "I made an examination of this homicide.I found a Chevrolet coach on the right hand side of the road going toward Vanceboro.The car was facing back toward Greenville at...