State v. Smith

• Court: North Carolina Supreme Court
• Citation: State v. Smith, 223 N.C. 457, 27 S.E.2d 114 (N.C. 1943)
• Decision Date: 13 October 1943
• Docket Number: 145.
• Parties: STATE v. SMITH.

27 S.E.2d 114

223 N.C. 457

STATE v. SMITH.

No. 145.

Supreme Court of North Carolina

October 13, 1943

Criminal prosecution tried upon indictment charging defendant with the murder of one Vernon Powell.

The evidence discloses that Vernon Powell was killed in his place of business in the Town of Warrenton, shortly before midnight on December 31, 1942. The defendant was seen in the place of business of the deceased, by J.W. Scott, Chief of Police of the Town of Warrenton, a few minutes before the body of the deceased was found. Death was caused by two compound fractures of the skull induced by the use of an axe. There was evidence that the motive for the killing was robbery.

Verdict "Guilty in the first degree of murder."

Judgment Death by asphyxiation.

The defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Julius Banzet of Warrenton, for defendant.

DENNY Justice.

The evidence against the defendant, other than certain confessions, was circumstantial. The circumstantial evidence tended to establish the identification of money of the deceased traced to the possession of the defendant; blood stains on the clothing defendant was wearing on the night of the murder; that defendant was the last person seen with deceased and was seen immediately after the murder running away from the scene; and possession by defendant on January 1, 1943, of a pistol previously in the possession of the deceased.

The defendant excepts to the ruling of the trial judge in allowing L.W. Tappan, a Special Agent for the State Bureau of Investigation, to read a written report for the purpose of refreshing his recollection as to statements made by the defendant to the witness. The report was dictated by the witness from notes taken by him during a conversation with the defendant on January 25, 1943. The Court permitted the witness to use the report solely for the purpose of refreshing his recollection.

We do not think the ruling of his Honor violative of the decisions of this Court upholding instances where a witness, solely for the purpose of refreshing his memory, has been permitted to examine a record or statement (1) prepared by him; (2) prepared under his supervision; or (3) made by another in his presence. In the case of State v. Finley, 118 N.C 1161, 24 S.E. 495, 498, the State offered to prove by a witness who was present at the taking of a deposition, the statements of the deceased made at that time as dying declarations.

The Court held: "The statements, beyond question, were admissible as the dying declarations of the deceased. State v. Mills, 91 N.C. 581. His honor allowed, against the objection of defendant Finley, the witness to read over the deposition of the deceased taken in the witness' presence, that he might refresh his memory in reference to the matter. The objection was properly overruled. It was not necessary, under the circumstances, that the witness should have written the paper himself in order that he might read it to refresh his memory. Greenl. Ev., § 436; State v. Staton, 114 N.C. 813, 19 S.E. 96." State v. Teachey, 138 N.C. 587, 50 S.E. 232; Spaugh v. Penn, 174 N.C. 774, 93 S.E. 693; Store v. Stokes, 178 N.C. 409, 100 S.E. 689; State v. Coffey, 210 N.C. 561, 187 S.E. 754; Rosenmann v. Belk-Williams Co., 191 N.C. 493, 132 N.C. 282. The memorandum is not the evidence. The evidence is the present recollection of the witness after refreshing his memory by referring to the memorandum. An exhaustive annotation on this subject will be found in 125 A.L.R. 19 et seq.

Dr. Haywood M. Taylor, Assistant and Associate Professor of Chemistry and Toxicology since 1930, in Duke University, was tendered by the State and found by the Court to be an expert in chemistry and toxicology. The purpose in using the expert testimony of Dr. Taylor was to show that an analysis, made by him of certain stains on the coat and trousers worn by the defendant on the night of the murder, showed the presence of human blood. The defendant does not object to the ruling of the Court in holding the witness to be an expert in chemistry and toxicology, but enters an exception on the ground that the witness is not an expert hematologist. The exception cannot be sustained. The qualifying examination clearly shows Dr. Taylor competent to testify as an expert in chemistry as to his findings and analysis made by him of the stains found on defendant's clothing. Moreover, the competency of a witness as an expert is properly addressed to the sound discretion of the trial judge and ordinarily is not reviewable. State v. Smith, 221 N.C. 278, 20 S.E.2d 313; State v. Smoak, 213 N.C. 79, 195 S.E. 72; Hardy v. Dahl, 210 N.C. 530, 187 S.E. 788; State v. Gray, 180 N.C. 697, 104 S.E. 647; Geer v. Durham Water Co., 127 N.C. 349, 37 S.E. 474; Flynt v. Bodenhamer, 80 N.C. 205. Furthermore, after the qualifying examination of the witness by counsel for defendant, no objection was made to the testimony of Dr. Taylor and no motion made to strike out his testimony as being incompetent.

The bill of indictment upon which the defendant was tried contains the essential elements as required by C.S. § 4614. The bill contains no allegation or count to the effect that the homicide was committed in the perpetration of a robbery. For this reason the defendant excepts to the refusal of the Court to...