State v. Southerland

• Citation: 100 S.E. 187,178 N.C. 676
• Decision Date: 24 September 1919
• Docket Number: 90.
• Parties: STATE v. SOUTHERLAND.
• Court: North Carolina Supreme Court

100 S.E. 187

178 N.C. 676

STATE v. SOUTHERLAND.

No. 90.

Supreme Court of North Carolina

September 24, 1919

Appeal from Superior Court, Wayne County; Kerr, Judge.

Ashley Southerland was convicted of murder in the second degree, and appeals. No error.

The prisoner was indicted jointly with Mabel Howard for the murder of Millard L. Parker, the indictment being in the usual form. He was convicted of murder in the second degree and sentenced to ten years in the state's prison. From this sentence he appealed to this court, assigning only one error. Upon his arraignment he moved for severance on the grounds there would be no evidence offered tending to show the joint commission of the offense; that the defense of Mabel Howard would be that the defendant, Ashley Southerland committed the offense, and that necessarily evidence would be admitted which, though competent against Mabel Howard, would not be competent against the defendant, Ashley Southerland. The court overruled this motion, and the defendant, Ashley Southerland excepted.

There is no constitutional or statutory requirement that in order to try two persons on the same indictment there must be a charge added of conspiracy.

Kenneth C. Royal and J. L. Barham, both of Goldsboro, for appellant.

J. S Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARK C.J.

There is no exception to evidence or the charge. The sole assignment of error is the refusal of the motion to sever. From State v. Smith, 24 N.C. 402 (1842), down to the present day, this court has uniformly held that the granting of a severance when two or more are jointly indicted in the same bill rests in the sound discretion of the trial judge and from his determination there is no appeal. State v. Smith, 24 N.C. 402; State v. Collins, 70 N.C. 241, 16 Am. Rep. 771; State v. Underwood, 77 N.C. 502; State v. Gooch, 94 N.C. 987; State v. Oxendine, 107 N.C. 783, 12 S.E. 573; State v. Finley, 118 N.C. 1161, 24 S.E. 495; State v. Moore, 120 N.C. 570, 26 S.E. 697; State v. Barrett, 142 N.C. 565, 54 S.E. 856; State v. Carrawan, 142 N.C. 575, 54 S.E. 1002; State v. Holder, 153 N.C. 606, 69 S.E. 66; State v. Millican, 158 N.C. 617, 74 S.E. 107.

There are other cases, among them the very recent case of State v. Kirkland & Wilson, 175 N.C. 771, 94 S.E. 725, which was a conviction of a secret assault with a deadly weapon with intent to kill. The defendants contended that much of the evidence in that case was competent against one defendant and not competent against the other, and that, "although the court charged the jury that much of this was not evidence against Kirkland, or not evidence against Wilson, yet it had its weight with the jury, and the defendants seriously insist that the court should have ordered a severance so that the cases might be tried upon the proper testimony as against each defendant. It has been frequently held that a motion for a separate trial of defendants charged in the same bill of indictment is a matter that must necessarily be left to the sound discretion of the trial judge. To undertake to review such rulings is impracticable, and would result in great delay in the disposition of criminal actions. It is only when there appears to have been an abuse of such discretion that this court will entertain such exceptions and review the rulings of the trial judge. Nothing of that nature appears in this record. State v. Dixon, 78 N.C. 558; State v. Parish, 104 N.C. 689 ; State v. Hastings, 86 N.C. 597; State v. Haney, 19 N.C. 390; State v. Murphy, 84 N.C. 742."

In State v. Finley, 118 N.C. 1161, 24 S.E. 495, the facts as presented to the court on the motion for a severance are very similar to those in this case. The court in that case (118 N.C. 1163, 24 S.E. 496) says:

"The defendant alleged that the defenses of each of the accused were in antagonism as the foundation of the motion. An exception was filed, on the ground that the denial of the motion was a gross breach of discretion on the part of the court. Unless the accused suffered some apparent and palpable injustice in the trial below, this court will not interfere with the decision of the court on the motion for a severance. Although the defenses were in conflict and involved the admission of testimony which was competent as against one of the defendants and not against the other, yet his honor, with entire certainty and clearness, carefully instructed the jury in the application of the evidence, explaining to them, by a proper analysis of the same, what part of it was competent against both and what part competent against one and not against the other, and guarding them against being influenced against either of the defendants by such evidence as he had instructed them was only competent against the other one. We therefore refuse to

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