State v. Russell

Annotate this Case

64 S.E.2d 579 (1951)

233 N.C. 487


No. 74.

Supreme Court of North Carolina.

April 18, 1951.

*580 Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

I. C. Crawford and George Pennell, Asheville, for defendant.

STACY, Chief Justice.

The record discloses no challenge to the voluntariness of defendant's confession, either before or after its reception in evidence; nor was there any repudiation, disavowal, or denial of the statements contained therein, save the defendant's testimony to the effect that he "was all upset and had been worried to death all morning". State v. Rogers, 233 N.C. , 64 S.E.2d 572. On the strength of the confession, the jury was fully justified in returning the verdict they did, albeit the confession seems to have been offered only in corroboration of the officer's testimony.

*581 The defendant took a number of exceptions to the manner in which the solicitor cross-examined his witnesses and to the general conduct of the hearing. He contends that these exceptions, taken as a whole, or in their totality, if not singly, make it quite clear that the presiding judge inadvertently allowed the solicitor to take charge of the proceeding.

For example, the solicitor was allowed to ask one of defendant's witnesses on crossexamination if he did not know "that John Dailey is the man that is financing this trial?" This was before the defendant had gone upon the witness stand and his character had not then been put in issue. State v. Fowler, 230 N.C. 470, 53 S.E.2d 853; State v. Choate, 228 N.C. 491, 46 S.E.2d 476. The answer was, "I do not know." Then, this question: "Do you know this entire shooting occurred over a white liquor war here between the deceased and this Johnny Russell and John Dailey and another white man here in town? Objection. Answer: "No, Sir, I don't know what the trouble was." And this further question: "What were you talking to John Dailey about here a while ago in the courtroom? Objection. "He is a well known bootlegger here in town, isn't he?" Objection sustained.

Similar questions were asked other witnesses and in this way, the defendant contends, his character was impeached and his defense prejudiced, notwithstanding the seemingly harmless and even favorable answers to the questions. State v. Jones, 229 N.C. 276, 49 S.E.2d 463. Of course, it is possible for the court, by the manner of conducting the trial, to impeach the testimony of witnesses, or to convey an expression of opinion to the jury on the merits of the case in violation of G.S. ยง 1-180 as rewritten, Chap. 107, S.L.1949. State v. Simpson, 233 N.C. 438, 64 S.E.2d 568. The defendant thinks this was done here.

The defendant has pressed his position in respect of the totality of his exceptions with force and conviction; and but for the acquittal of defendant on the capital offense, it might prove difficult to resist his appeal. State v. Hart, 186 N.C. 582, 120 S.E. 345. Here, however, the defendant's confession makes him guilty at least of murder in the second degree, if not of the capital offense, and hence the errors assigned were apparently harmless. State v. Muse, 230 N.C. 495, 53 S.E.2d 529.

The defendant could not explain to the satisfaction of the jury, nor is it apparent from the record, how he and the deceased were facing each other, when the shooting occurred, and yet the deceased was shot in the right back and in the back of the head. The jury did not accept his plea of self-defense.

The court's charge to the jury has not been brought forward in the transcript and we must assume the judge properly instructed the jury in respect of the matters about which the defendant now complains. State v. Hovis, 233 N.C. 359, 64 S.E.2d 564.

On the record as presented, the exceptions, taken singly or in their total impact, seem insufficient to justify a disturbance of the result below. Hence, the verdict and judgment will be upheld.

No error.

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