State v. Ross
| Decision Date | 12 January 1927 |
| Docket Number | 74. |
| Parties | STATE v. ROSS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Warren County; Craumer, Judge.
W. L Ross was convicted of murder in the first degree, and he appeals. New trial.
In prosecution for murder in first degree, exclusion of evidence of prisoner's drunkenness held error, entitling defendant to new trial.
cooley & Bone, of Nashville, for appellant.
D. G Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
This case presents a number of difficult questions.
In the first place, the prisoner is under a sentence of death for the murder of Eula Odum, and there is no evidence or admission on the record that any such crime was ever committed. All evidence of the corpus delicti has been omitted from the case, and it does not appear, by agreement or otherwise, that this was proved on the hearing. 7 R. C. L 774. In justice to the trial court, it should be said that the only part of the statement of case on appeal, which he settled, is the charge. The balance was agreed upon by the solicitor for the state and counsel for the prisoner.
In the next place, the exception addressed to the refusal of the court to grant the prisoner's motion for a continuance, at least until the second week of the term, in order that he might prepare his defense, presents a question, which, if we were compelled to decide on the present record, would probably find us in disagreement. While ordinarily this is a matter resting in the sound discretion of the trial court, nevertheless it should be remembered that the prisoner has a constitutional right of confrontation, which cannot lawfully be taken from him, and this includes the right of a fair opportunity to present his case. State v. Hartsfield, 188 N.C. 357, 124 S.E. 629.
Again, in the record, as first certified to this court, it is stated that the jury returned the following verdict:
"That the said W. L. Ross is guilty of the felony and murder in manner and form as charged in the bill of indictment."
It was said in State v. Truesdale, 125 N.C. 696, 34 S.E. 646, that, since the act of 1893, now C. S. 4200 and 4642, dividing murder into two degrees, first and second, a verdict which fails specifically to find the prisoner guilty of murder in the first degree, will not support a death sentence. See, also, State v. Murphy, 157 N.C. 614, 72 S.E. 1075. Thinking that an error had probably crept into the record in making up the transcript on appeal, we directed a certiorari to the clerk, requiring another certificate of the record as it appears in the superior court of Warren county. In response, the clerk has certified a complete transcript of the minutes of the trial. The only record of the verdict appears in the judgment, reciting that the jury "for their verdict have said that the said W. L. Ross is guilty of the felony and murder in the first degree as charged in the said bill of indictment," and the judgment is recorded as the minute of the day's proceeding. Whether this is a sufficient compliance with the requirements of the law we need not now determine, as a new trial must be awarded on other grounds.
These matters are mentioned, however, in passing, and attention is directed to them, in order that they may be guarded against in the future. It is fundamental with us and expressly vouchsafed in the Bill of Rights that no person shall be "deprived of his life, liberty or property, but by the law of the land." Const. art. I, § 17.
The prisoner, if permitted, would have testified that, on the day of the homicide, as well as the day preceding, he had been drinking "quite a bit," and that when he was under the influence of ardent spirits "he lost his memory entirely." Sallie Bet Ross, the prisoner's adopted daughter, and a witness for the state, would have testified on cross-examination, had she been permitted to do so, that the prisoner had attempted to commit suicide on one occasion and that he would "talk foolish" when under the influence of liquor, which he was in the habit of imbibing quite...
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