State v. Stewart

• Decision Date: 01 April 1925
• Docket Number: 273.
• Parties: STATE v. STEWART ET AL.
• Court: North Carolina Supreme Court

127 S.E. 260

189 N.C. 340

STATE v. STEWART ET AL.

No. 273.

Supreme Court of North Carolina

April 1, 1925

Appeal from Superior Court, Brunswick County; Grady, Judge.

C. W Stewart and another were convicted of murder in the first degree, and they appeal. No error.

Indictment indorsed and returned as true bill by all of 13 members of grand jury present, held good against motion to quash.

The prisoners were indicted for the murder of Leon George and Sam Lilly, and upon conviction of murder in the first degree they appealed from the judgment pronounced. The state's theory was substantially as follows:

On July 29, 1924, between 4 and 5, afternoon, W. H. Russell saw the deceased, Leon George and Sam Lilly, officers of the law, at the Chinnis store. They had a Ford touring car, in which were a small whisky still and an Airedale terrier. They took out the still, said they were on the trail of Elmer Stewart, and went away in the direction of Bob's branch. Russell lived a half mile from the Chinnis store, and within 50 yards of the prisoners. After returning home, he went to the Stewart house and told the prisoners what he had seen and heard. They inquired as to the still and the direction in which the officers had gone. Elmer Stewart then brought up a Dodge touring car, and his father, C. W. Stewart, told him the buckshot shells were in his trunk, and gave him a bunch of keys. In a few minutes they passed Russell's home in the Dodge car going towards the place where the dead bodies of the officers were afterwards found.

The officers, after leaving the Chinnis store, crossed over Bob's branch, and later in the afternoon were seen coming back by the home of David Hooper and passing down into the branch. In a few minutes the Hoopers and Fuller McFadden heard shots, together with threats and profane language. In a few minutes thereafter the dead bodies of the two officers and the dog were found a few yards from the branch. George was in the front seat of the car, the dog on the back seat and Lilly on the ground behind the car. All the buckshot were fired from the front, but the bullet in George's head entered from the right. The officers' car did not stop running until the guns fired; but, after the firing had ceased, another car was heard to turn around about 228 feet from the scene of the homicide. The car had United States cord tires, and the track was followed into the Fuller McFadden road, and thence to the prisoners' garage. On the edge of the road near the Ford car at an elevation of about 7 1/2 feet and about 88 feet distant from the car was a trampled or standing place. Soon after the shots were heard the prisoners returned home; the elder carrying a gun and the younger two pistols. The buckshot found in the bodies of the deceased and the buckshot shells found on the ground where the shooting occurred were identical with those found in the Stewart garage.

After they returned home, Elmer Stewart went away in a Ford truck, and C. W. Stewart spent the night away from home. There was evidence that C. W. Stewart went to Amos Wallace's house the same night and made a confession of his guilt, reciting the various circumstances, which it is not necessary to set out in detail. Other evidence was offered tending to show incriminating remarks by C. W. Stewart.

The defense was a complete denial of the state's theory, and an alibi. The prisoners contended they had hidden a condenser on Fuller McFadden's land, and on the afternoon in question had gone there to see whether it could be fitted to a certain apparatus used by Elmer Stewart in the swamp, and, finding that it could not, had left it in the woods. They denied having a gun or pistol; denied any admission or confession; and contested the truth of all the material evidence offered by the state. The exceptions are stated in the opinion.

John D. Bellamy, William M. Bellamy, and David Sinclair, Jr., all of Wilmington, for appellants.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

Before their arraignment the prisoners filed a plea in abatement, and moved to quash the indictment on the ground that the bill was considered, passed upon, and approved by the grand jury when only 13 of its members were present. This body, serving for a period of six months, had been impaneled and charged at a former term; but when the indictment was found 5 of the number were unavoidably absent. All who were present voted to indorse and return the indictment "a true bill." Afterwards 2 of the absent members came in, but took no part in finding the indictment or returning it into court.

There was no error in denying the motion to abate the prosecution. At common law the indictment was sufficient if 12 members of the grand jury assented. In Rex v. Marsh, 6 A. & E. 237 (112 Eng. Reports, 89), it is said:

"It is sufficient that twelve found the bill. An indictment is 'an accusation found by an inquest of 12 or more upon their oath.' Co. Litt. 126b. In 2 Hale's P. C. 154, it is stated that the sheriff, on precept to him, is to return 24 or more persons, out of whom the grand inquest is to be taken and sworn; and at page 161 it is said that, 'if there be 13 or more of the grand inquest, a presentment by less than 12 ought not to be; but, if there be 12 assenting, though some of the rest of their number dissent, it is a good presentment.' In Com. Dig., indictment (A) is stated to be an accusation, 'found by a proper jury of twelve men'; and the same definition (as to number) is given in 4 Hawk. P. C. 1, book 2, c. 25 (7th Ed. by Leach). In 4 Bl. Com. 306, it is said that 'to find a bill, there must at least 12 of the jury agree,' and 'no man can be convicted at the suit of the king of any capital offense, unless by the unanimous voice of 24 of his equals and neighbours; that is, by 12, at least, of the grand jury, in the first place, assenting to the accusation; and afterwards by the whole petit jury.' 'But, if 12 of the grand jury assent, it is a good presentment, though some of the rest disagree.' And in 14 Vin. Abr. 377, Indictment (H, 9) pl. 5, it is said that the caption ought to show that the indictors 'were 12 in number.' "

Compare 2 Haw. P. C. c. 25, § 15; 1 Chit. Cr. Law, 311; 2 Bishop's New. Cr. Pro. § 854.

With reference to the number necessary to the finding of an indictment, the common law obtains in North Carolina, and is not affected by the provision that the 18 jurors first drawn shall be a grand jury for the court. C. S. § 2333; State v. Davis, 24 N.C. 153; State v. Barker, 107 N.C. 914, 12 S.E. 115, 10 L. R. A. 50; State v. Perry, 122 N.C. 1018, 29 S.E. 384; State v. Wood, 175 N.C. 809, 816, 95 S.E. 1050.

During the progress of the trial, at the request of counsel for the prisoners and with the consent of the state, the court, the jury, the prisoners, and all the attorneys, except one of those representing the prisoners, went to the scene of the homicide. There the court was opened in the usual way, and the prosecuting officer suggested that the position of the Ford car and the trampled spot be pointed out by the witnesses, but the prisoners objected to the taking of any evidence. Thereupon L. R. Early, who had previously testified in the courthouse as to the position of the Ford car, the dead bodies, the place where the other car had turned around, and other circumstances, was permitted to identify the several places to which he had referred and certain landmarks by which he was guided; and A. A. Nelms and R. C. Fergus indicated places where shells and wadding had been found. Mattie Hooper also was introduced as a witness for the state. She lived near the place of the homicide, and testified as to what she had seen and heard at the time the shooting took place.

The prisoners have vigorously assailed this entire proceeding, and have insisted that their rights were thereby impaired and their defense materially prejudiced.

After the examination of the witnesses just referred to, the court returned to Southport and reconvened in the courthouse. Thereafter (the time is not definitely fixed) the judge struck from the record the entire testimony of Mattie Hooper, and directed the jury not to consider it, and to disregard any impression it might have created. He also instructed them not to consider the result of their "crouching observation" from one of the places pointed out by L. R. Early.

The power of the court to withdraw incompetent evidence and to instruct the jury not to consider it has long been recognized in this state. Of course, there are circumstances under which such power may not be exercised, as in Gattis v. Kilgo, 131 N.C. 199, 42 S.E. 584, with which may be compared State v. Bryant, 189 N.C. 112, 126 S.E. 107. But here the presiding judge merely corrected the inadvertent admission of evidence which he afterwards conceived to be incompetent and to which the prisoners had objected. The withdrawal of the testimony was favorable to the defense, and is sustained by a number of our decisions. In McAllister v. McAllister, 34 N.C. 184, Chief Justice Ruffin said:

"It is undoubtedly proper and in the power of the court to correct a slip by withdrawing improper evidence from the consideration of the jury, or by giving such explanations of an error as will prevent it from misleading a jury."

He expressed the same opinion three-quarters of a century ago and the practice has been observed since that time. State v. May, 15 N.C. 328; State v. Davis, 15 N.C. 612; State v. Collins, 93 N.C. 564; State v. McNair, 93 N.C. 628; Bridgers v. Dill, 97 N.C. 222, 1 S.E. 767; State v. Crane, 110 N.C. 530, 15 S.E. 231; Wilson v. Mfg. Co., 120 N.C. 94, 26 S.E. 629; State v. Lunsford, 177 N.C. 117, 97 S.E. 682; State v. Dickerson, 189 N.C....