State v. Stafford
| Decision Date | 30 November 1932 |
| Docket Number | 90. |
| Citation | 166 S.E. 734 |
| Parties | 203 N.C. 601, 203 N.C. 648 v. STAFFORD. STATE |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; Clayton Moore, Special Judge.
Joe Stafford was convicted of murder, and he appeals.
Judgment affirmed; appeal dismissed.
Criminal prosecution tried upon an indictment charging the prisoner with the murder of his wife, Dorothy Smith Stafford.
Verdict Guilty of murder in the first degree.
Judgment Death by electrocution.
The prisoner appeals, assigning errors.
Walter G. Sheppard, of Snow Hill, and John D. Langston, of Goldsboro, for appellant.
D. G Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
The evidence on behalf of the state tends to show that in the early afternoon of April 4, 1932, the prisoner shot and killed his wife under circumstances indicative of a mind fatally bent on mischief and a heart devoid of social duties. The deceased left her sick bed, in her mother's home, barefooted, dressed only in her nightclothes, and fled for her life a distance of about 580 yards down the hill to a spring and there hid herself in a ditch. The prisoner in pursuit, discovering her here in hiding, commanded her to come out of the ditch, which she did, falling at his feet and pleading that her life be spared. While in this position, the prisoner shot the deceased three times and killed her. He then turned the pistol upon himself and fired the fourth and last bullet into his own head, inflicting a wound which proved less than fatal.
The homicide is not denied. The defense interposed on behalf of the prisoner was that of mental irresponsibility or insanity. The evidence tending to support this plea was submitted to the jury and rejected or found to be unsatisfactory. State v. Jones, 203 N.C. 374, 166 S.E. 163; State v. Campbell, 184 N.C. 765, 114 S.E. 927; State v. Terry, 173 N.C. 761, 92 S.E. 154. In this jurisdiction, as well as in many others, when insanity is interposed as a defense in a criminal prosecution, the burden rests with the defendant, who sets it up, to prove such insanity, not beyond a reasonable doubt, but to the satisfaction of the jury. State v. Wilson, 197 N.C. 547, 149 S.E. 845; State v. Walker, 193 N.C. 489, 137 S.E. 429; State v. Jones, 191 N.C. 753, 133 S.E. 81.
The prisoner complains that Mrs. Dora Smith, a witness for the state, of her own volition, and without notice or warning, knelt in prayer as she approached the witness stand. "As soon as this was observed, the court ordered the witness to arise and if she desired to retire to her room, opportunity was given her to do so." Immediately following this injunction, she arose and took the witness stand. The prisoner noted an exception.
The conduct of the witness was unusual, to say the least, but the court seems to have dealt with it in a manner satisfactory at the time. The prisoner did not move for a mistrial, nor did he request the court to do more. Indeed, the prisoner might have pleaded former jeopardy had a mistrial been ordered ex mero motu. State v. McKeithan, 203 N.C. 494, 166 S.E. 336; State v. Ellis, 200 N.C. 77, 156 S.E. 157; State v. Beal, 199 N.C. 278, 154 S.E. 604. The situation was one calling for the exercise of the sound discretion of the trial court. State v. Lea, 203 N.C. 13, 164 S.E. 737. "The judge is not a mere moderator, and it would detract very much from the efficiency and economy of the administration of justice if he were unnecessarily hampered with arbitrary rules as to matters which have always been committed to his sound discretion." State v. Southerland, 178 N.C. 676, 100 S.E. 187, 188. The case of State v. Wilcox, 131 N.C. 707, 42 S.E. 536, where a new trial was ordered for improper demonstrations, cited and relied upon by the prisoner, is not in point. Furthermore, the testimony of this witness was inconsequential. She only indentified the nightgown which the deceased had on at the time of the shooting, and described the blood stains appearing thereon. The homicide had already been established by other witnesses.
The record contains a number of exceptions, all of which have been examined, and none discovered of sufficient merit to warrant a new trial; but for jurisdictional reasons, the appeal must be dismissed. State v. Golden, 203 N.C. 440, 166 S.E. 311.
First, the transcript fails to show the organization of the court ( State v. May, 118 N.C. 1204, 24 S.E. 118), or that the "court was held by a judge authorized *** to hold it, and at the place and time prescribed by law." State v. Butts, 91 N.C. 524.
In Spence v. Tapscott, 92 N.C. 576, it was held (as stated in first headnote): "In order for the Supreme Court to acquire jurisdiction, it must appear in the transcript of the record that an action was instituted, that proceedings were had and a judgment rendered from which an appeal could be taken, and that an appeal was taken from such judgment." To like effect are the decisions in State v. Preston, 104 N.C. 733, 10 S.E. 84, State v. Farrar, 103 N.C. 411, 9 S.E. 449, State v. Johnston, 93 N.C. 559, State v. McDowell, 93 N.C. 541, Jones v. Hoggard, 107 N.C. 349, 12 S.E. 286. See, also, Walton v. McKesson, 101 N.C. 428, 7 S.E. 566, on the points that entry of appeal must appear on the record.
Second, the attempted appeal is in forma pauperis, and the order allowing the prisoner to appeal without giving security for costs, while "finding from the petition filed herein on behalf of the defendant that he is unable to pay the costs of appeal or to enter into a bond with sufficient sureties for the payment of such costs," was apparently made without supporting affidavit as required by C. S. § 4651. In response to request for such record, the clerk of the superior court of Wayne county reports: "I do not find affidavit of the defendant or certificate of his counsel in the papers." It was said in State v. Moore, 93 N.C. 500, that the court has no authority to grant an appeal "without security for costs" in the absence of the required affidavit, nor can the sufficiency of such affidavit be waived by the solicitor.
It was suggested in this same case, State v. Moore, supra, and repeated in State v. Jackson, 112 N.C. 849, 16 S.E. 906, that if the recital had been simply "the defendant was permitted *** to appeal in forma pauperis upon affidavit filed," perhaps a presumption would arise as to the sufficiency of the affidavit on the principle of omnia rite acta praesumuntur, but where the insufficiency of the affidavit or the lack of it, as here, is made to appear, no presumption of regularity or sufficiency can arise ( State v. Jones, 93 N.C. 617), and the appeal will be dismissed, not as a matter of discretion, but because it was improvidently granted. State v. Marion, 200 N.C. 715, 158 S.E. 406; State v. Brumfield, 198 N.C. 613, 152 S.E. 926; State v. Smith, 152 N.C. 842, 67 S.E. 965; State v. Atkinson, 141 N.C. 734, 53 S.E. 228; State v. Wylde, 110 N.C. 500, 15 S.E. 5; State v. Duncan, 107 N.C. 818, 12 S.E. 382; State v. Morgan, 77 N.C. 510; State v. Payne, 93 N.C. 612.
Speaking to the subject in State v. Divine, 69 N.C. 390 Settle, J., delivering the opinion of the court, said:...
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