State v. Spencer

• Decision Date: 30 October 1918
• Docket Number: 346.
• Citation: 97 S.E. 155,176 N.C. 709
• Parties: STATE v. SPENCER.
• Court: North Carolina Supreme Court

97 S.E. 155

176 N.C. 709

STATE v. SPENCER.

No. 346.

Supreme Court of North Carolina

October 30, 1918

Appeal from Superior Court, Surry County; Shaw, Judge.

Napoleon Spencer was convicted of murder in the first degree and appeals. No error.

As corroborative of testimony, it is competent to show witness had made to others statements similar to his testimony, and this by his own testimony.

The prisoner was charged with the murder of Mrs. Alva Hester which is alleged to have been committed in Forsyth county on March 5, 1918. The case, upon motion and affidavit of the prisoner, was removed to Surry county for trial.

It was not denied by the prisoner that Mrs. Hester was killed at the time stated, about 5:30 o'clock in the afternoon of Tuesday, March 5, 1918, but he contended that he was not there at the time and took no part in the homicide. There is evidence tending to show that almost immediately after the reports of the pistol were heard a man was seen going over a knoll about 25 yards from the house where the Hesters lived. He was not recognized at the time, but the witness James Stanly stated that he wore a dark suit, and there was something white around his neck above his coat. He did not see him well enough to know who he was. Further evidence tended to show that the prisoner was seen the same afternoon in that neighborhood, and walking in the direction of the house, and wearing a dark cap and coat, and having something white around his neck, and something over his face so that you could not see it. He also had on goggles. John Ford, one of the witnesses, saw him pass when going in the direction of the Hester home, and his tracks were traced from that place to the Hester house, and a shoe put in his tracks which was found to fit it. The same evening, after the homicide had been committed, he was seen to come out of the woods and from the general direction of the Hester place. He returned to his home, and his mother stated to Mrs. Bean, her language being "That's my boy coming from his work, but that's a funny way for him to come from his work." He came in the back way from the direction of the Shady Mount schoolhouse. He was arrested in his room that very evening and the goggles, clothes, overalls, scarf, and pistol were found there. He was in bed when the officers went to his home. He was asked where his pistol was, and replied that it was downstairs in his mother's room, but the officers turned up his pillow and found the pistol, which was of 38 caliber. The goggles were found behind the bed, where the ceiling and weatherboarding stopped. The warrant was read to him, charging that he had carried a concealed weapon, a pistol, to Mrs. Daniel's; when he said that he was not the man, as the Hanes Knitting Mill, where he worked, did not close until 5:30 p. m. He was taken by the officers to Mr Boyd's, where he was identified by certain witnesses as the man they had seen that afternoon. There was evidence contradicting his statements as to where he was during the afternoon when Mrs. Hester was killed. He had quit his work at the mill about noon, and did not return in the afternoon of that day, though he had said that he could not have been at the Hester house at 5:30 p. m., the time of the homicide because the mill did not close until 5:30 o'clock p. m. While in jail he was asked why there was blood on his handkerchief and on his overalls, and he replied that his nose had bled and he used is handkerchief. The officers found another handkerchief in his pocket with blood on it, and still another, and he gave the same explanation as to each one of them, and added that the blood from his nose had dripped on his overalls. On one of the handkerchiefs there was a spot that looked like burnt powder, and when questioned about it he stated that he had a dog and wanted him to bite and had fed him with powder for that purpose. There was other evidence tending, more or less, to connect the prisoner with the commission of the homicide, but it need not be stated, in the view taken of the case, except to say that when the body of Mrs. Hester was found she was lying on her back in the room, and was covered with blood, which was fresh. As Mr. Hester was coming to the house, after hearing the report of the pistol, he was shot in the head when near the house. The jury found the prisoner guilty of murder in the first degree, and from the judgment upon the verdict he appealed.

J. S. Fitts and Jones & Clement, all of Winston-Salem, for appellant.

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

WALKER, J. (after stating the facts as above).

It cannot be well doubted that there was ample evidence of the prisoner's guilt. The evidence, it is true, was circumstantial, but sufficiently strong for submission to the jury, and the court clearly and fully explained in its instructions the nature of such evidence and what was required to make it sufficient for a conviction. The charge was altogether favorable to the prisoner, and his rights were carefully guarded in every respect, and there is no ground upon which any objection to it can securely rest, though we will later on notice one or two exceptions taken to it.

Exceptions were entered to several rulings of the court upon evidence and other matters, which we will consider in the order of their assignment.

First. The court permitted the witness J. T. Thompson to use a map of the premises where the homicide occurred to explain and illustrate his testimony, and it was used for no other purpose, the court restricting it to that special purpose. We have often held that maps and diagrams are competent for the purpose of enabling a witness to explain his testimony so that the jury may understand it. State v. Wilcox, 132 N.C. 1120, 44 S.E. 625; State v. Rogers, 168 N.C. 112, 83 S.E. 161; Wharton's Ev. in Cr. Cases, p. 1116, § 537a.

Second. The testimony of the witness J. W. Daniel, as to the man shooting at his dog near his home, was competent as some evidence of the prisoner's identity, and of the fact that he had a pistol, and this is true when this testimony is read in connection with that of Mary Walker, who was walking behind the man who shot at the dog and who testified that it was the prisoner, as she thought at the time. The appearance of the dog as he returned to the house was natural evidence. "The instantaneous conclusions of the mind as to appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence." State v. Leak, 156 N.C. 643, 72 S.E. 567; Renn v. Railroad Co., 170 N.C. 128, 86 S.E. 964. Within this rule, the opinion of the witness as to the appearance of the dog and his conduct was permissible.

Third. The question asked the witness J. W. Daniel, which was excluded on objection of the state, was, of course, not answered and it did not appear what the answer would have been. It might have been unfavorable to the prisoner, in which case his objection would have failed, as he could gain nothing by such an answer and was deprived of no beneficial testimony. McMillan v. Railroad Co., 172 N.C. 853, 90 S.E. 683.

Fourth. The testimony of Mary Walker, as to the identity of the man she saw near J. W. Daniel's house when the pistol was fired and the dogs barked and were frightened away, was competent. She could give her impression or opinion as to who he was from what she saw, as she knew him before. "Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury. Eminently is this the case with regard to noises and smells, to questions of identification, where a witness is allowed to speak as to his opinion or belief, and to the question whether a party believed himself at the time to be in great danger of death." Wharton's Ev. in Cr. Cases, § 459, p. 62.

Fifth. It was competent, as corroborative of Otis Ross' testimony, to show that he had made to other...