State v. Sims

• Decision Date: 25 May 1938
• Docket Number: 650.
• Citation: 197 S.E. 176,213 N.C. 590
• Parties: STATE v. SIMS.
• Court: North Carolina Supreme Court

197 S.E. 176

213 N.C. 590

STATE v. SIMS.

No. 650.

Supreme Court of North Carolina

May 25, 1938

Appeal from Superior Court, Guilford County; W. F. Harding, Judge.

Ben Sims was convicted of first-degree murder, and he appeals.

No error.

There was evidence tending to show that the defendant fatally shot the deceased after premeditation and deliberation. There was also evidence tending to show that the defendant fired the fatal shots in self-defense. The issue of the defendant's guilt was submitted to the jury under a charge wherein they were instructed that they might return one of four verdicts Guilty of murder in the first degree, guilty of murder in the second degree, guilty of manslaughter or not guilty.

The jury returned a verdict of guilty of murder in the first degree, and from judgment of death the defendant appealed assigning errors.

The bad character of a defendant testifying in his own behalf can be proved both by witnesses who testify that they know his general character, and by cross-examination of defendant concerning acts of which the defendant has been guilty and which tend to impeach his character.

Harry Rockwell and Stern & Stern, all of Greensboro, for appellant.

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

SCHENCK Justice.

Exceptive assignments of error Nos. 1, 2 and 3 assail the Court's action in overruling the defendant's motion made in apt time to quash the bill of indictment for the reason that women had been excluded from the jury list.

The Court found as facts that women were not placed upon the jury lists in Guilford County and that women were systematically excluded from said lists, even though they may be of good moral character and of sufficient intelligence and may own both real and personal property in said county.

The defendant states in his brief "Whether this action (the overruling of the motion to quash) was error raises two questions: (1) Whether women are qualified to serve as jurors? and (2) Whether that question can be raised by this defendant."

We will consider the second question first. The defendant is a male person. Therefore even if it be conceded that there is a discrimination in the exclusion of women from the jury such discrimination could not have been against the class to which the defendant belongs, which, according to the weight of authorities, is a prerequisite to his right to raise the question of prejudice by discrimination. A person who is not included in the class against which there has been a discrimination cannot take advantage of the discrimination by pleading that the proceeding constitutes a violation of the equal protection guaranteed by the Fourteenth Amendment of the Constitution of the United States, U.S.C.A.Const.Amend. 14, and by Section 17 of Article 1 of the Constitution of North Carolina. In the case of McKinney v. State of Wyoming, 3 Wyo. 719, 30 P. 293, 16 L.R.A. 710, wherein the defendant, a male person placed on trial before a jury from which women had been excluded, sought to have the indictment quashed, the Court said (page 296): "* * * the very idea of a jury is that the body of men of whom it is composed are the peers or equals of the person whose rights it is selected or summoned to determine, and that they must be of the same legal status in society as that which he holds. The plaintiff in error asserts a right or privilege of having members of the opposite sex, as well as those of his own sex, to determine his rights, because they are unconstitutionally excluded from enjoying a right granted to them, and not because any one of his own sex is denied the right. If women have the right, if it is a right, to serve as jurors, and to 'assist in the administration of justice' thereby, it seems that no one but a woman-one of the class or sex whose rights have been invaded-can assert that right. It must be demanded by one who has been denied the equal protection of the law, and a civil or political right or privilege of which she, in common with her sex, has been deprived. The courts will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who, therefore, has no interest in defeating it. Cooley, Const.Lim. 164."

While it has been held that members of the Negro Race may successfully demand that they be not placed upon trial upon a bill of indictment found by a jury from which negroes had been excluded, Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567, we apprehend that it would not be held that a member of the Caucasian Race could successfully move to have an indictment quashed because of the exclusion of negroes from the jury. See also State v. Peoples, 131 N.C. 784, 42 S.E. 814.

We are of the opinion, and so hold, that the defendant in this case, being a male person, cannot raise the question as to whether women may serve on the jury by a motion to quash the bill of indictment; and since it is not properly raised, we are not called upon to decide the first question suggested in appellant's brief.

The assignments of error Nos. 1, 2 and 3 cannot be sustained.

Exceptive assignments of error Nos. 24, 25 and 26 assail the following excerpt from the charge: "There is evidence tending to show that he (the defendant) is a man of bad character. You will consider that, but if you believe what the defendant says about it to be true you will give his evidence the same weight as you would if he was not interested."

In order to understand the portion of the charge assailed it is necessary that it be read in connection with what preceded it. The Court charged: "The State contends that you ought not to believe what he (the defendant) says because he is interested in your verdict. He is interested. His life is at stake. His liberty is at stake. And because of the interest he has got the State contends he would be moved to give that coloring and accentuation to his testimony that would be of greatest advantage. It is your duty to scrutinize his testimony in the case. ...