State v. Scales

• Decision Date: 30 June 1955
• Docket Number: No. 650,650
• Citation: 242 N.C. 400,87 S.E.2d 916
• Court: North Carolina Supreme Court
• Parties: STATE, v. Richard SCALES.

Page 916

87 S.E.2d 916

242 N.C. 400

STATE, v. Richard SCALES.

No. 650

Supreme Court of North Carolina.

June 30, 1955

Atty. Gen. Harry McMullan and Asst. Atty. Gen. T. W. Bruton, for the State.

C. Clifford Frazier, Jr., and Stedman Hines, Greensboro, for defendant.

DENNY, Justice.

The defendant's second assignment of error is based on the denial of his motion for a change of venue or for a special venire from outside Guilford County. He contends that the publicity this alleged crime had received in the newspapers, over the raido and television stations in Greensboro and High Point, had prejudiced the minds of the people of Guilford County against him to such an extent that his motion should have been allowed.

A motion for a change of venue or for a special venire from another county, upon the ground that the minds of the residents in the county in which the crime was committed had been influenced against the defendant, is addressed to the sound discretion of the trial court. State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Lea, 203 N.C. 13, 164 S.E. 737; State v. Shipman, 202 N.C. 518, 163 S.E. 657; State v. Wiseman, 178 N.C. 784, 101 S.E. 629; State v. Plyler, 153 N.C. 630, 69 S.E. 269. Therefore, this assignment of error is overruled.

The defendant assigns as error the refusal of the court below to grant his motion for a bill of particulars.

The defendant was charged with murder in the first degree in the manner and form prescribed by G.S. § 15-144. Under such an indictment the State is entitled to introduce evidence that the defendant committed the homicide in the perpetration of, or attempt to perpetrate rape or other felony, and it is sufficient to sustain a charge based upon evidence relative to murder committed in the perpetration of rape, attempt to commit rape or other felony. State v. Grayson, 239 N.C. 453, 80 S.E.2d 387; State v. Mays, 225 N.C. 486, 35 S.E.2d 494; State v. Fogleman, 204 N.C. 401, 168 S.E. 536.

It is provided in G.S. § 15-143, 'In all indictments when further information not required to be set out therein is desirable for the better defense of the accused, the court, upon motion, may in its discretion, require the solicitor to furnish a bill of particulars of such matters.'

In our opinion the defendant has in no way been prejudiced by the denial of his motion since his statements to the officers as to how, when, and under what circumstances he killed the deceased were in accord with the theory of the trial in the court below. There was no variance between the allegata and the probata. State v. Grayson, supra. Moreover, the statute which provides that a motion for a bill of particulars may be granted leaves it in the discretion of the trial court as to whether or not such motion should be granted. State v. Wadford, 194 N.C. 336, 139 S.E. 608. The ruling of the court below will be sustained.

Assignments of error Nos. 17 through 23A are directed to the refusal of the trial court to permit an expert psychiatrist and witness for the defendant to testify to the effect that the defendant was a man of low mentality. Low mentality does not mean that a man is insane or unable to distinguish between right and wrong. Furthermore, the defendant did not plead insanity or mental irresponsibility. Neither did he offer any evidence to the effect that he did not know the difference between right and wrong at the time he committed the alleged crime, which is the test of responsibility of a person charged with a criminal offense. State v. Shackleford, 232 N.C. 299, 59 S.E.2d 825.

In State v. Jenkins, 208 N.C. 740, 182 S.E. 324, 325, Stacy, C.J., in considering a similar assignment of error, said: 'The only testimony offered by the defendant to support his plea of insanity was that of several witnesses who would have testified, if permitted to do so, that the defendant was a man of low mentality. The exclusion of this evidence is the principal question presented by the appeal. There was no error in its exclusion. State v. Vernon, 208 N.C. 340, 180 S.E. 590. Low mentality is not the test of insanity. State v. Spivey, 132 N.C. 989, 43 S.E. 475. He who knows the right and still the wrong...