State v. Graves

Annotate this Case

114 S.E.2d 770 (1960)

252 N.C. 779


No. 723.

Supreme Court of North Carolina.

June 10, 1960.

*771 Atty. Gen. T. Wade Bruton, for the State.

B. F. Wood, Graham, M. Hugh Thompson, Durham, for defendant appellant.

WINBORNE, Chief Justice.

Of the many assignments of error based upon exceptions taken to matters occurring in the course of the selection of jury, to the taking of evidence, to the argument of Solicitor, and to the charge of the court, appearing in the record of case on appeal, defendant appellant assigns as error in particular No. 9: "In that His Honor, over defendant's objection allowed the Solicitor to argue to the jury as follows, and denied defendant's motion for a mistrial: `This is the type of crime, I argue to you, that tempts people to take the law into their own hands. It is the type of crime that people get worked up about and forget that they are law abiding citizens and they take the law into their own hands and do things that they may or may not regret later. I argue to you that could easily have happened in this case but they didn't, the people were relying upon you, that is the jurors and the people of this County to uphold the laws of this State in which rape is a capital crime, and I argue to you it is your duty as jurors to uphold that law although it is in your unbridled discretion to recommend life imprisonment. I argue to you that you shouldn't exercise that discretion in this case. If you did, I don't know what would happen so far as the next case is concerned. I don't know and I'm not going to argue to you. This type of crime could be committed a thousand times and maybe there would not be a person taking the law in their own hands, but I argue to you this, if this defendant is given life imprisonment rather than death, I don't know what might happen,'" on which exceptions 16 and 17 are based.

Furthermore, in reference thereto the Attorney General, in brief filed on this appeal, after quoting the above remarks of the Solicitor, had this to say: "Similar arguments have been held for error by this Court as not supported by evidence," citing cases, including State v. Little, 228 N.C. 417, 45 S.E.2d 542.

In the Little case, supra, the second headnote epitomizes the decision of the Court in this manner: "Wide latitude is given counsel in the exercise of the right to argue to the jury the whole case, as well of law as of fact, but counsel is not entitled to travel outside of the record and argue facts not included in the evidence, and when counsel attempts to do so it is the right and duty of the court to correct the argument, at the time or in the charge to the jury." G.S. ยง 84-14.

To like effect are: Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525; State v. Bowen, *772 230 N.C. 710, 55 S.E.2d 466; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664; State v. Phillips, 240 N.C. 516, 82 S.E.2d 762; State v. Smith, 240 N.C. 631, 83 S.E.2d 656; State v. Willard, 241 N.C. 259, 84 S.E.2d 899; State v. Roberts, 243 N.C. 619, 91 S.E.2d 589; State v. Roach, 248 N.C. 63, 102 S.E.2d 413; State v. Walker, 251 N.C. 465, 112 S.E.2d 61.

Since there must be a new trial for error pointed out, the merit or demerit of other assignments of error will not be treated as they may not recur upon another trial. For error indicated, there must be a

New trial.