State v. Simmons, 298

• Decision Date: 29 October 1952
• Docket Number: No. 298,298
• Citation: 72 S.E.2d 743,236 N.C. 340
• Parties: STATE, v. SIMMONS.
• Court: North Carolina Supreme Court

Page 743

72 S.E.2d 743

236 N.C. 340

STATE, v. SIMMONS.

No. 298

Supreme Court of North Carolina.

Oct. 29, 1952

Charles L. Abernethy, Jr., New Bern, for defendant-appellant.

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

WINBORNE, Justice.

At the outset let it be noted that defendant has been tried twice in the Superior Court of Craven County on substantially the same evidence, and thereon has been twice convicted of murder in the first degree. Nevertheless, substantial prejudicial error in the second trial, from judgment in which this appeal is taken, is made to appear, which entitles him to a third trial.

I. In the course of the charge of the court to the jury, in stating contentions of the State and of the defendant, the court, after saying that the State contends that the jury ought not to believe defendant, and ought to render a verdict of murder in the first degree, stated the following: 'Now, the defendant contends and says you should have a reasonable doubt about it. (As I understand the counsel for the defendant has argued to you that you should return a verdict upon this evidence. If I am wrong I want to be corrected. I understand that the counsel for the defendant argued that you should return a verdict of murder in the first degree with mercy * * *).'

This is defendant's Exception 24.

In this connection, this Court has held that in this State a defendant will not be permitted to plead guilty to murder in the first degree. State v. Blue, 219 N.C. 612, 14 S.E.2d 635, and cases there cited. For it is provided by statute, formerly Sec. 3 of Chapter 85, L.1893, later Revisal § 3271 and C.S. § 4642, now G.S. § 15-172, that the 'jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree'. And the Court states in State v. Matthews, 142 N.C. 621, 55 S.E. 342, that this section applies equally to all indictments of murder, whether perpetrated by means of poison, lying in wait, imprisonment, starving, torture or otherwise, formerly C.S. § 4200, now G.S. § 14-17. In the instant case the defendant had pleaded not guilty, and the presumption of innocence followed him until and unless removed by the verdict of the jury,--the credibility of the testimony being for the jury to determine. State v. Maxwell, 215 N.C. 32, 1 S.E.2d 125; State v. Blue, supra. And the statement: 'I understand that the counsel for the defendant argued that you should return a verdict of guilty of murder in the first degree with mercy,' is tantamount to saying that counsel tendered a plea of guilty of murder in the first degree, which counsel for defendant would have no right to make, and the court no authority to accept. Hence it is prejudicial to defendant. And it is no less prejudicial by reason of the court saying: 'If I am wrong, I want to be corrected.' Indeed, if counsel had then and there admitted that he made such argument the prejudicial effect would be as great, if not greater. And it would not be binding on defendant. State v. Redman, 217 N.C. 483, 8 S.E.2d 623.

II. Defendant further excepting to portions of the charge contends that the court's charge on the right of the jury to recommend life imprisonment, under provisions of G.S. § 14-17, is not clear and tends to confusion.

Upon former appeal, 234 N.C. 290, 66 S.E.2d 897, speaking of G.S. § 14-17, as amended by Sec. 1 of Chapter 299 of 1949, Session Laws of North Carolina pertaining to punishment for murder in the first degree, it is said that this amendment to the statute merely gives to the jury the right, at the time of rendering a verdict of murder in the first degree, in open court, to recommend that the punishment shall be imprisonment for life in the State's prison, that is, an unbridled discretionary right. And it is there stated that, true, the statute expressly requires the judge to instruct the jury in the event a verdict of guilty of murder in the first degree shall have been reached, it has the right to recommend that the punishment shall be for life in the State's prison. That no more and no less would be accordant with the intent of the amendment to the statute. See too State v. McMillan, 233 N.C. 630, 65 S.E.2d 212.

Now, in this aspect, testing the charge of the court in the instant case, in the light of the provisions of this amendment to G.S. § 14-17, the matter as presented is not clear. Early in the charge the court instructed the jury 'that you have the right under the evidence in this case to render either one of several verdicts. You may find the defendant guilty of the crime of murder in the first...