State v. Terry
| Decision Date | 25 April 1917 |
| Docket Number | 377. |
| Citation | 92 S.E. 154,173 N.C. 761 |
| Parties | STATE v. TERRY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Webb, Judge.
J. A Terry was convicted of murder in the first degree, and appeals. No error.
110k1044.1(2) Preliminary Proceedings; Indictment, Information, or Complaint.
Where no motion was made by a prisoner to summon venire from adjoining county, he cannot complain on appeal.
Jurors who admit having formed opinions, but who express themselves able to render a fair verdict on the evidence, guided by the instructions, are competent.
S. Clay Williams, Oscar L. Sapp, and Jerome & Jerome, all of Greensboro, for appellant.
Attorney General Manning and Assistant Attorney General Sykes, for the State.
In apt time, after rendition of the verdict, the prisoner filed a written motion for a new trial, "for that he has not had a fair and impartial trial and such as is guaranteed to him by the laws of the land":
(1) Because the special venire from which the jurors were chosen to try the prisoner should have been summoned from some other county than the county of Guilford. We fail to find in the record any motion by prisoner to summon a venire from an adjoining county. Had such motion been made and denied, it could not be reviewed by us, as it is a matter within the sound discretion of the judge of the superior court.
(2) Because the state had under subp na and in attendance Dr Campbell, an acknowledged expert in diseases of the mind, and failed to offer him as a witness. The state solicitor had the right to select his witnesses and use such only as he thought best. There is no law that compels the solicitor to place all of the state's witnesses on the witness stand. If the prisoner desired the testimony of Dr. Campbell, he should have called and examined him.
(3) Because one of the attorneys for state, in concluding the argument, was permitted to make improper and prejudicial remarks to the jury. There is nothing in the record to substantiate such statement, no finding in the case on appeal that such improper remarks were made, and no exception taken to them at the trial. Had such remarks been made, it was the duty of prisoner's counsel to call the attention of the court to them in order that the judge may correct them. For failure to do so, an exception should have been taken.
(4) Because the prisoner was required to assume the burden of proof as to his insanity. This will be considered later in the course of this opinion.
There are numerous assignments of error, all of which relate to three subjects, viz. the composition of the jury, the charge of the court, and to the burden of proof.
The prisoner excepted to the ruling of the court declaring that three jurors were duly qualified. The peremptory challenges of the prisoner were exhausted, and the challenged jurors could not be stood aside. Upon a very exhaustive examination these jurors admitted that they had read much about the case in the local papers, and had heard a great deal about it in public rumors and had formed an opinion that the prisoner was guilty. They further stated that they would go into the jury box under the belief that the prisoner was guilty, and that it would take evidence to remove that impression. One of the jurors stated that in his opinion the burden of proof would be on the defendant to prove his innocence, and that unless he did so, he (the juror) would return a verdict of guilty. Upon cross-examination, as well as upon examination by the court, the juror testified that he could "eliminate from his mind all that he had heard or read, and that he could go into the jury box and be governed solely by the evidence produced upon the trial and by the charge of the court and that he could give the state and the prisoner an absolutely fair trial. Upon examination by the judge, the juror stated again that he could render a verdict uninfluenced by any opinion he may have formed or anything that he may have heard or read. The court in his discretion found the said jurors to be impartial, and had them tendered and sworn. This ruling of his honor was in exact accord with the decisions of this court in the very recent case of State v. Foster, 90 S.E. 785, which cites with approval the case of State v. Banner, 149 N.C. 519, 63 S.E. 84, in which the same questions were asked and like answers returned as in the case now before this court. The decision there was that a juror, having been tested according to the standard used in the present case, was a competent juror, and that his admission to the jury box was in the sound discretion of the judge. State v. English, 164 N.C. 498, 80 S.E. 72.
The prisoner excepts to the charge of the judge upon the plea of insanity, and tenders several prayers for instruction in respect thereto which the court refused to give. It is unnecessary to consider these assignments of error seriatim.
The prisoner is charged with the murder of one John R. Stewart on the 15th of July, 1916. All the evidence tends to prove: That on that day the prisoner went to the residence of the deceased armed with a pistol. At the time the deceased and his wife were in the cow barn, milking a cow. That the deceased was sitting on a box milking a cow at the time when the prisoner approached; the prisoner said: "Hello, Mr. Stewart." The deceased turned around and said: "Hello, Terry." The prisoner leaned forward with a pistol in his hand and shot and killed the deceased. At the time the prisoner was so close to the deceased that the face of the latter was burned by the powder. There is also evidence of some ill feeling upon the part of the prisoner about some money which he claimed the deceased owed him and had not paid.
It is not questioned that the evidence tends strongly to prove a willful, deliberate, and premeditated killing. The plea of insanity interposed by the prisoner is undoubtedly supported by much evidence, although strongly combated by the state. In his charge to the jury, the learned judge below upon this plea stated the contentions and the evidence relied upon by the prisoner, as well as by the state, with great clearness fullness, and fairness, and instructed the jury very carefully as to what constitutes insanity and its effect when the plea is established. In his instruction, the judge carefully followed the numerous and well-settled decisions of this court. He instructed the jury fully as to what constitutes murder in the first degree, and that it is...
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State v. Levy
...under C. S. § 2338, or drawn from the box under C. S. § 2339, are both discretionary with the judge of the superior court. State v. Terry, 173 N.C. 761, 92 S.E. 154; State v. Brogden, 111 N.C. 656, 16 S.E. 170; State v. Smarr, 121 N.C. 669, 28 S.E. 549. And, unless an objection goes to the ......
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State v. Harris
... ... 491, 11 S.E.2d 469; State v. Stafford, 203 N.C. 601, ... 166 S.E. 734; State v. Jones, 203 N.C. 374, 166 S.E ... 163; 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; State ... v. Terry, 173 N.C. 761, 92 S.E. 154 ... It is ... quite correct to say the burden is on the State to prove ... beyond a reasonable doubt every essential element of the ... crime charged, including the necessary intent. State v ... Newsome, 195 N.C. 552, 143 S.E. 187; State v ... ...
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... ... impartial verdict despite anything that he might have heard ... or read presents no reviewable question of law. State v ... Lord, 225 N.C. 354, 34 S.E.2d 205; State v ... Dixon, 215 N.C. 438, 2 S.E.2d 371; State v ... Bailey, 179 N.C. 724, 102 S.E. 406; State v ... Terry, 173 N.C. 761, 92 S.E. 154; State v ... Foster, 172 N.C. 960, 90 S.E. 785; State v ... Banner, 149 N.C. 519, 63 S.E. 84; State v ... Bohanon, 142 N.C. 695, 55 S.E. 797; State v ... Potts, 100 N.C. 457, 6 S.E. 657 ... The ... appealing defendant assigns as error ... ...
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State v. Stafford
...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 jurisdiction, as well as in many others, when insanity is interposed as a defense in a criminal prosecution, the burden res......