State v. McKenna

224 S.E.2d 537 (1976)

289 N.C. 668

STATE of North Carolina v. Edward Martin McKENNA.

No. 22.

Supreme Court of North Carolina.

May 14, 1976.

*544 William B. Marshall, Jr., Raleigh, for defendant-appellant.

Rufus L. Edmisten, Atty. Gen., Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., and William H. Guy, Associate Atty., Raleigh, for the State of North Carolina.

HUSKINS, Justice:

Prior to arraignment defendant moved to dismiss the murder charge on the ground that, prior to trial, he had not been served with an arrest warrant, indictment, or other criminal process informing him of the particulars of the charge against him. After a voir dire hearing, the trial judge made findings of fact and concluded as a matter of law that defendant had shown no prejudicial denial of his constitutional rights. Denial of the motion to dismiss constitutes defendant's first assignment of error.

Defendant contends he was denied due process in that he was not adequately informed of the charge against him and thus was prejudiced in the preparation of his defense. For the reasons which follow, this contention is without merit.

Although defendant was never served with the warrant, the record indicates that a valid warrant was issued on 20 April 1975, a true bill was returned on 28 April 1975 charging defendant with murder, and defendant's own affidavit indicates he was given a copy of the murder indictment soon thereafter. Paragraph 8 of his affidavit reads: "That he was not informed of the Grand Jury proceedings nor given a copy of the murder indictment against him until over a week after the Grand Jury sat." Moreover, a capias instanter was served on defendant on 15 May 1975 informing him *545 that he was under indictment for murder. Defendant was advised of the details of the charge by the officer who served the capias and also by his attorneys. He was arraigned and placed on trial on 7 July 1975. The record shows he had counsel at all times after 7 May 1975 and that no motion was ever made for a bill of particulars or for additional time within which to prepare his defense. These facts strongly suggest that defendant was sufficiently apprised of the charges against him and had adequate time to prepare his defense.

The usual practice, and the better practice in our view, is to serve defendant promptly with the arrest warrant. This would have informed him of the charges against him. Such service, however, is not a constitutional requirement of due process. Due process is satisfied if the defendant is adequately notified of the charge against him, is permitted to confront his accusers and witnesses with other testimony, has assistance of counsel, and is afforded adequate time to prepare and present his defense. See State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Cradle, 281 N.C. 198, 188 S.E.2d 296, cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499 (1972); State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962); State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961); State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948). The record in this case indicates that defendant was afforded all of these safeguards. No prejudice has been shown by failure to serve the warrant. If defendant needed additional information concerning the charge against him, a bill of particulars, as authorized by former G.S. 15-143 (now G.S. 15A-925), would have provided it. See State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973). This assignment is overruled.

Defendant's second assignment is not discussed in his brief and is therefore deemed abandoned. Rule 28, Rules of Appellate Procedure.

After twelve jurors had been accepted by both the State and the defendant, but before the jury had been empaneled, it was brought to the attention of the presiding judge that Juror No. 7, Mrs. Ella Johnson, had stated to Juror No. 8, Mrs. Virginia Reynolds, "I hope they acquit him," in violation of the court's earlier instructions that the jurors should not discuss the case among themselves until they had heard all the evidence, the argument of counsel, the instructions of the court, and had retired to the jury room for the purpose of deliberating upon their verdict. The district attorney thereupon moved "that the court in its discretion permit the State to exercise one of its remaining peremptory challenges." The court, over objection, allowed the motion "in its discretion and in the interest of justice." Mrs. Johnson was then excused peremptorily by the State. An additional juror was questioned and passed by both the State and the defendant and the jury was empaneled. This ruling constitutes defendant's third assignment of error.

G.S. 9-21(b) provides in pertinent part that "[t]he State's challenge, peremptorily or for cause, must be made before the juror is tendered to the defendant." We have held, however, contrary to defendant's contention, that the statute does not deprive the trial judge of his power to closely regulate and supervise the selection of the jury to the end that both the defendant and the state may receive a fair trial before an impartial jury. State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 38 L. Ed. 2d 99, 94 S. Ct. 143 (1973). This view has been sustained in numerous cases, including State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975); State v. Wetmore, 287 N.C. 344, 215 S.E.2d 51 (1975); and State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972). We are persuaded anew that our holding on this point in State v. Harris supra, is sound. Nothing in G.S. 9-21(b) prohibits the trial court, in the exercise of its discretion before the jury is empaneled, from allowing the State to challenge peremptorily or for cause a prospective juror previously accepted by the State and tendered to the defendant. "[I]t is the duty of the trial judge to see *546 that a competent, fair and impartial jury is empaneled, and to that end the judge may, in his discretion, excuse a prospective juror even without challenge from either party. Decisions as to a juror's competency at the time of selection and his continued competency to serve are matters resting in the trial judge's sound discretion and are not subject to review unless accompanied by some imputed error of law." State v. Waddell, supra.

We are not inadvertent to the decision of this Court in State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894). In that case defendant was charged with murder. A prospective juror was passed by the State and the defendant, but before he was sworn the juror asked to be excused because of a long friendship with the defendant who was also related to him by marriage. The trial judge ruled there was no ground for challenge for cause but permitted the State to challenge the juror peremptorily. This Court, holding this to be error, stated:

"The discretionary power of the Judge was confined to challenges for cause. He had no more authority to extend the time for making peremptory challenges beyond the limit fixed by the statute than he had to increase the number allowed to the State beyond four. The question of the proper interpretation of the language of the statute is one for this Court, and its meaning seems so plain as to require but little further discussion of this exception.. . ."

In State v. Harris, supra, we distinguished Fuller on the ground that the challenge in Fuller was peremptory whereas in Harris the juror was challenged for cause. Justice Branch, however, writing for the Court in Harris, said:

"If the present case and Fuller were not distinguishable, and Fuller was interpreted to hold that under a statute similar to G.S. 9-21(b) the trial judge was divested of his supervisory and discretionary powers to insure the selection of a fair, competent and impartial jury, we would be compelled by the forces of better reasoning and the overwhelming weight of authority to overrule that portion of Fuller so holding."

Following this intimation in Harris, we held in State v. Wetmore, supra, that the trial court did not abuse its discretion in allowing the district attorney to reexamine two prospective jurors after both had been passed by the State and the defendant and excuse one for cause and the other peremptorily. Thus we no longer regard as authoritative that portion of Fuller which holds that the trial judge may not, in the exercise of his discretionary and supervisory powers to insure an impartial jury, permit the district attorney to challenge peremptorily a prospective juror after the juror has been passed by the State and tendered to the defendant. State v. Fuller, supra, insofar as it is inconsistent with the views expressed in this opinion, is overruled.

Defendant suffered no prejudice when the State was permitted to challenge Mrs. Johnson peremptorily. He is not entitled to a jury of his choice and has no vested right to any particular juror. So long as the jurors who are actually empaneled are competent and qualified to serve, defendant may not complain; and this is particularly true where, as here, defendant fails to exhaust his peremptory challenges. See State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975). This assignment of error is overruled.

Two photographs, State's Exhibits 2 and 5, portraying the condition and location of the victim's body at the scene of the killing, were admitted into evidence over objection. Defendant contends that the scenes depicted are basically identical to those shown by other photographs and exhibits offered by the State. He argues that the limited probative value for illustrative purposes of State's Exhibits 2 and 5 was far outweighed by their inflammatory and prejudicial effect upon the jury. Admission of these photographs constitutes the basis for defendant's fourth assignment of error.

Photographs of the scene of a homicide are competent in this jurisdiction for the purpose of illustrating the testimony *547 of a witness. State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, death sentence vacated 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971); State v. Gardner, 228 N.C. 567, 46 S.E.2d 824 (1948); 1 Stansbury's North Carolina Evidence § 34 (Brandis rev. 1973). It is proper in the prosecution of a homicide to admit sufficiently authenticated photographs used by a State's witness to illustrate his testimony relating to the position and appearance of the body of the deceased even though the scenes portrayed are repulsive and unpleasant. If a photograph is relevant and material the fact it is gory or gruesome, and thus may tend to arouse prejudice, will not alone render it inadmissible. See State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975); State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970).

State's Exhibits 2 and 5 were properly authenticated by Detective Arrington who testified that they accurately depicted and portrayed the condition and location of the torso and full body of the deceased as he observed it on arrival at the scene of the killing. These photographs were therefore competent to illustrate the testimony of Detective Arrington. Whether one or both should have been admitted was in the discretion of the court. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969). We hold that the use of these two photographs was not excessive, unnecessarily duplicative, or inflammatory. Prejudicial error with respect to this assignment is not shown, and it is accordingly overruled.

Defendant moved to suppress State's Exhibit 23, the alleged murder weapon, contending it was the fruit of an illegal search and seizure in violation of the Fourth and Fourteenth Amendments to the Federal Constitution. At the voir dire hearing triggered by that motion, the State and defendant produced evidence heretofore narrated in the factual statement of this case. The trial judge made findings of fact substantially in accord with the voir dire testimony of the State's witnesses and, based on those findings, concluded as a matter of law that Agents Brady and Evans had probable cause to believe that defendant's home contained firearms in violation of federal and state laws and thus subject to seizure under a lawful search warrant. The court further concluded that the search warrants obtained by Agents Brady and Evans were not based upon information secured by Agent Terry when he entered defendant's premises on 26 March 1975, both warrants having been issued prior to such entry. The trial court concluded that the weapon identified as State's Exhibit 23 was lawfully seized by Agent Brady and was not the fruit of any official illegality. The motion to suppress was therefore denied and State's Exhibit 23 was received in evidence over defendant's objection. The ruling of the trial court in this respect constitutes defendant's fifth assignment of error.

The Fourth Amendment does not prohibit all searches and seizures but only those which are unreasonable. Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960); State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976), and cases therein cited. Whether a search or seizure is unreasonable must be determined upon the facts of each individual case. State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971).

In the instant case, the findings of the trial judge that the search warrants under which Agents Brady and Evans acted were issued prior to Agent Terry's entry and were not based upon any information obtained by Agent Terry are fully supported by competent evidence presented on voir dire. These findings, therefore, are conclusive on appeal and this Court cannot properly set aside or modify them. See State v. Curry, 288 N.C. 660, 220 S.E.2d 545 (1975); State v. Thomas, 284 N.C. 212, 200 S.E.2d 3 (1973); State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972); State v. Pike, 273 N.C. 102, 159 S.E.2d 334 (1968); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966), cert. denied, 386 U.S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784 (1967). Accordingly, the admission *548 into evidence of State's Exhibit 23 was proper and not violative of defendant's Fourth Amendment rights. This assignment is overruled.

Defendant's sixth assignment of error is based on denial of his motion for nonsuit. A nonsuit motion requires the trial court to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. If, when so considered, there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). The credibility and weight of the evidence, and its sufficiency to remove any reasonable doubt of guilt, are matters for the jury. State v. Jenerette, 281 N.C. 81, 187 S.E.2d 735 (1972); State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969). Discrepancies and contradictions in the evidence are, for the purposes of this motion, to be resolved in favor of the State. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). When the evidence here is so considered, it is sufficient to carry the case to the jury. Defendant's sixth assignment of error is overruled.

On direct examination defendant disclosed a long criminal record involving numerous housebreakings and larcenies in this and other states. For some of the offenses, he had served time in prison for others, he had never been tried. On cross-examination the district attorney, for purposes of impeachment, asked defendant whether he had stolen particular items of property at specific addresses on nine previous occasions. While propounding the questions concerning these unrelated offenses, the district attorney, "in plain view of the jury, began holding up several criminal warrants and as he would hold one in his hand he would ask Mr. McKenna if he had broken into a house in a town specified in the warrant and stolen the amount of items specified in the warrant." Defendant's objection was overruled and defendant answered each question, denying that he committed any of the crimes mentioned. Defendant contends the court erred in permitting the district attorney to cross-examine him concerning unrelated criminal conduct and to hold the arrest warrants in his hand in view of the jury while doing so. This constitutes defendant's seventh assignment of error.

A defendant who elects to testify in his own behalf surrenders his privilege against self-incrimination and knows he is subject to impeachment by questions relating to specific acts of criminal and degrading conduct. Such cross-examination for impeachment purposes is not limited to conviction of crimes but encompasses any act of the witness which tends to impeach his character. State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938); State v. Colson, 194 N.C. 206, 139 S.E. 230 (1927). More recent cases applying this rule include State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972); and State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971).

Here, defendant concedes the rule to be as stated but requests the Court to reexamine and repudiate it. We declined a similar request in State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973), saying: "The rule is necessary to enable the State to sift the witness and impeach, if it can, the credibility of a defendant's self-serving testimony." We therefore adhere to both the rule and the reason for it.

Defendant further contends, however, that even if the cross-examination concerning the commission of other named criminal offenses was proper, the trial court nevertheless erred in allowing the district attorney to display the warrants in front of the jury while propounding the questions. He argues that the prosecutor was thus permitted, in effect, to cross-examine defendant as to whether he had been indicted or accused of other criminal offenses, thus doing indirectly what he could not do directly.

It would be highly improper for the prosecutor to display to the jury outstanding arrest warrants in which defendant is *549 charged with the commission of criminal offenses unrelated to the case on trial. Such conduct would be a clear violation of State v. Williams, supra. Here, however, defendant concedes in his brief that "the jury was not aware that the documents were only arrest warrants and not the defendant's criminal record." Nevertheless, argues defendant, "the jury may well have mistaken the warrants held up by the district attorney for records of the defendant's criminal convictions and concluded that the defendant had not fully disclosed his prior convictions in his testimony on direct examination and was, in fact, compounding and enlarging his lies on cross-examination."

Defendant's argument is mere speculation. Just as easily the jury could have thought the papers were notes prepared by the district attorney or, not knowing what they were, could have given them no thought at all. Moreover, in light of the numerous crimes which, by his own admission, defendant had committed over the years, we think that merely "holding up" some papers, when considered in the context of the total evidence, had minimal, if any, impact on the jury and was insufficient to constitute prejudicial error. See 3 Strong's N.C.Index 2d, Criminal Law §§ 169, 170 (1967), and cases cited therein. Defendant's seventh assignment is therefore overruled.

Defendant contends the court erred by allowing the district attorney in his closing argument to state that defendant had lied and to argue, by negative implication, matters not in evidence. This constitutes defendant's eighth assignment of error.

The record discloses that defense counsel in his opening argument vigorously attacked the credibility of the State's witness James Charles Pittman. After pointing out several alleged inconsistencies in Pittman's testimony, counsel said: "That to me is an absolutethat proves that Mr. Pittman has told at least one absolute lie on the stand." At another point, referring to Pittman's plea-bargaining whereby he agreed to testify for the State in exchange for a ten-year prison sentence, counsel said: "I say to you, ladies and gentlemen of the jury, that's one hell of a deal."

In his closing argument the district attorney said: "Pittman has already made his bed. He's going to lie in it for ten years whichever way the case comes out. The only person whose fate hinges on this case, and he is the most interested party, and that is the defendant right over there, Ed McKenna. And that is why you're supposed to scrutinize his clearly tainted, lying testimony." At another point in his argument the district attorney said: "Who has the most interest, Pittman or McKenna? He has, McKenna has every reason to lie."

The record discloses that defendant on cross-examination stated that State's witnesses, Terry, Gaskins, Fipps, Brady, and others, had lied and only the defendant himself had testified truthfully. Commenting upon that aspect of the evidence, the district attorney said: "Everybody lied but McKenna. He hasn't committed numerous burglaries. He didn't have a hundred and eighty-two thousand dollars worth of stolen property in his home at the time he was arrested." The district attorney then explained to the jury that defendant's criminal record, if any, was competent only for the purpose of impeaching his credibility and that the State was bound by his answers. Even so, the district attorney argued that the jury "should be able to tell that Ed McKenna over here is not only a habitual felon but an accomplished and accustomed liar."

The record reveals that no objections were interposed at trial to the argument on either side. Ordinarily, an objection and exception to argument comes too late after verdict. When improper argument is made to the jury it is the duty of opposing counsel to make timely objection so the judge may correct the transgression by instructing the jury. State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975); State v. Hawley, 229 N.C. 167, 48 S.E.2d 35 (1948). The general rule requiring objection before verdict does not apply in a capital case if the argument is so grossly improper that removal of its prejudicial effect, after a *550 curative instruction, remains in doubt. See State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975); State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975); State v. White, supra; State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971). Here, the improper argument of the district attorney is not of such magnitude. A curative instruction from the judge, had he been afforded an opportunity to give it by timely objection, would have removed any prejudice possibly engendered by the argument. The evidence of defendant's guilt is highly convincing and there is no reasonable basis upon which to conclude that a different result would likely have ensued had the challenged argument been entirely omitted.

It is improper for the district attorney, and defense counsel as well, to assert in his argument that a witness is lying. "He can argue to the jury that they should not believe a witness, but he should not call him a liar." State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967). Ordinarily, the argument of counsel is left largely to the control and discretion of the presiding judge and wide latitude is allowed in the argument of hotly contested cases. State v. Britt, supra; State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960); State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955). Language consistent with the facts in evidence may be used to present each side of the case. State v. Britt, supra; State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975). These rules, however, do not license counsel to use unbridled language which exceeds the bounds of propriety or disturbs the orderly processes of the court. We do not approve the language used by the district attorney and by defense counsel. Even so, in light of the facts and circumstances disclosed by the record, we do not think its use constitutes prejudicial error requiring a new trial. Failure of defense counsel to object when the district attorney's argument was made is some indication that, at the time, he thought his own remarks had triggered the argument or else thought his client was suffering no harm. Defendant's eighth assignment of error is overruled.

The Federal search warrant (State's Exhibit 24) and the State search warrant (State's Exhibit 25) were admitted into evidence without objection. Federal Agent Brady testified that he swore to the affidavit upon which the Federal warrant was issued and, having taken the stand, he was subject to cross-examination. SBI Agent Evans testified that he swore to the affidavit upon which the State search warrant was issued and, having taken the stand, he was subject to cross-examination. Defendant now argues on appeal that the affidavits are hearsay and contain prejudicial allegations concerning the presence of stolen property at defendant's home. Defendant assigns as error the admission of these affidavits, citing State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1972), and State v. Jackson, 287 N.C. 470, 215 S.E.2d 123 (1975). This requires a brief examination of the cited cases.

In Spillars an affidavit used to obtain a search warrant was introduced into evidence. The affiant did not take the stand. The statements and allegations contained in the affidavit were hearsay and indicated defendant's complicity in another crime. Held: Admission of the affidavit was error because admission of hearsay statements deprived defendant of his right of confrontation and cross-examination and permitted the State to strengthen its case by the use of incompetent evidence.

In Jackson the State offered and the court received in evidence, over objection, the complaint and warrant issued thereon for defendant's arrest. Held: The trial court committed prejudicial error in the admission of the complaint executed by a police officer who did not testify at trial because the State was thereby permitted to strengthen its case with incompetent hearsay evidence by a person who was not subject to cross-examination.

The principles enunciated in Spillars and Jackson are sound and we reaffirm them. These cases, however, are clearly distinguishable from the instant case. Here, (1) the affidavits supporting the issuance *551 of the search warrants were received into evidence without objection and (2) both affiants took the witness stand and submitted themselves to cross-examination. These witnesses testified on direct and cross-examination to substantially the same matters contained in the affidavits, including the presence of stolen firearms and other stolen property in defendant's home. Thus the hearsay statements in the affidavits were merely corroborative, and the affiants' availability for cross-examination permitted the defendant to confront the witnesses against him and to cross-examine them. Furthermore, defendant himself testified to some of the matters contained in the affidavits. In light of these facts, we hold that introduction of the affidavits upon which the search warrants were obtained was not prejudicial error. This assignment is overruled.

Defendant's final assignment of error is grounded on denial of his motions in arrest of judgment, for a mistrial, for a new trial and to set aside the verdict.

A motion in arrest of judgment is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record. State v. Armstrong, 287 N.C. 60, 212 S.E.2d 894 (1975); State v. McCollum, 216 N.C. 737, 6 S.E.2d 503 (1940). Judgment may be arrested in a criminal prosecution when, and only when, some fatal error or defect appears on the face of the record proper. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970); State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966). The face of the record in this case reveals no fatal defect; consequently, denial of the motion in arrest of judgment was proper.

Motions to set aside the verdict and for a new trial are addressed to the sound discretion of the trial court and, absent abuse of discretion, refusal to grant them is not reviewable. State v. McNeill, 280 N.C. 159, 185 S.E.2d 156 (1971); State v. Reddick, 222 N.C. 520, 23 S.E.2d 909 (1943). These motions were properly denied.

Defendant's motion for a mistrial was made after verdict and therefore came too late. In a capital case the court may order a mistrial without the consent of the accused only in cases of necessity to attain the ends of justice. State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970); State v. Harris, 223 N.C. 697, 28 S.E.2d 232 (1943); State v. Cain, 175 N.C. 825, 95 S.E. 930 (1918); State v. Tyson, 138 N.C. 627, 50 S.E. 456 (1905). In capital cases the court must find the facts and place them in the record to the end that the court's action may be reviewed on appeal. State v. Boykin, 255 N.C. 432, 121 S.E.2d 863 (1961); State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954). Defendant's brief contains no citation of authority but merely states the contention that error was committed in overruling the motion. The motion was a mere formality, tardily made, and was properly denied.

A careful examination of all defendant's assignments of error discloses no reason in law to disturb the verdict and judgment. In the trial below we find

NO ERROR.