State v. Porth

153 S.E.2d 10 (1967)

269 N.C. 329

STATE v. Robert E. PORTH.

No. 417.

Supreme Court of North Carolina.

February 3, 1967.

*15 T. W. Bruton, Atty. Gen., Andrew A. Vanore, Jr. and Wilson B. Partin, Jr., Staff Attorneys, Raleigh, for the State.

White, Crumpler, Powell & Pfefferkorn, by Harrell Powell, Jr., William Pfefferkorn and Fred G. Crumpler, Jr., Winston-Salem, for defendant appellant.

HIGGINS, Justice.

Before pleading to the indictment the defendant filed a written, duly verified motion requesting, in the alternative, that the cause be removed to, or that a jury be drawn from, another county as contemplated by G.S. § 1-84 and G.S. § 1-86. In support of the motion the defendant offered 25 affidavits, in each of which a citizen of the county stated that in his opinion, because of the widespread discussion and unfavorable publicity, the defendant could not obtain a fair trial in Forsyth County. The State filed approximately an equal number of affidavits and called four witnesses, each expressing the opinion a fair and impartial jury could be obtained in the county. Judge Shaw conducted a hearing on the motion, read all the affidavits, examined the press releases, and heard the witnesses. At the conclusion of the hearing he found that a fair and impartial jury could be obtained from Forsyth County and denied the motion. The evidence was sufficient to support the finding and called for the exercise of the court's discretion. Failure to exercise the discretion properly is not disclosed. State v. Childs, N.C., 152 S.E.2d 453; *16 Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751; Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244; State v. McKethan, N.C., 152 S.E.2d 341; State v. Scales, 242 N.C. 400, 87 S.E.2d 916; State v. Culberson, 228 N.C. 615, 46 S.E.2d 647; State v. Lea, 203 N.C. 13, 164 S.E. 737.

In the actual selection of the jury, the record discloses that 109 veniremen were called and examined under oath, touching their qualifications to serve as jurors. During the examination the State exhausted its six peremptory challenges. The defendant exhausted only 12 of his allotted 14 peremptories. A jury, including two alternates (later excused) was selected. Most of those approved by both parties had read some of the news articles and had heard the case discussed. Each juror selected testified he could hear the evidence, the argument of counsel, and the court's charge and render a verdict thereon uninfluenced by anything he had read or had heard. State v. Moore, 258 N.C. 300, 128 S.E.2d 563.

The defendant assigns as error the court's refusal to require the State to file a bill of particulars. Defense counsel had been furnished copies of the officers' reports, the reports of the autopsies, and had been permitted to interrogate the State's key witness, Nancy Johnson. Defense counsel was present when the defendant made the admissions to Sheriff Shore, his deputies, and Captain Burton. The State introduced nothing which should have been of surprise to the defendant. The court's refusal to order any additional bill of particulars was not error. G.S. § 15-143; State v. Banks, 263 N.C. 784, 140 S.E.2d 318; State v. Thornton, 251 N.C. 658, 111 S.E.2d 901; State v. Hinton, 158 N.C. 625, 74 S.E. 104.

During the course of the long trial the defendant entered numerous exceptions to the admission and the exclusion of evidence, both testimony of witnesses and documents. All told, the defendant's brief of 126 pages discusses 57 assignments of error based on 116 exceptions. Obviously, a seriatim discussion would prolong this opinion beyond reasonable bounds. State v. Lea, 203 N.C. 13, 164 S.E. 737. The assignments not herein discussed have been examined and have been found to be without merit.

Defendant insists the court should not have admitted for illustrative purposes photographs of the dead body. Two objections were interposed: (1) certain photographs were repetitious; (2) others were inflammatory. Notably, inaccuracy in any particular, is not claimed. Photographs were used to illustrate the testimony of the witnesses with respect to the position and extent of the blood, bruises, and contusions on the body. "If a photograph is relevant and material, the fact that it is gory or gruesome * * * will not alone render it inadmissible." Stansbury on Evidence, § 34, pp. 66-67; State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; State v. Utley, 223 N.C. 39, 25 S.E.2d 195.

Six of defendant's assignments of error involve the evidence of the medical experts as to the cause of death. In particular, the defendant challenges the testimony of Dr. Mann who performed an autopsy in Milwaukee five months after Mrs. Porth's death. Dr. Mann's qualifications were most impressive, fully justified the court's finding of expertness in his field. He testified: "Well, the body was in an excellent state of preservation and quite satisfactory for examination." He found that death resulted from concussion and shock. This evidence was admissible. 3 Underhill, Criminal Evidence, § 632; State v. Daly, 210 Mo. 664, 109 S.W. 53; Kemp v. State, 278 Ala. 637, 179 So. 2d 762; Tarkaney v. Commonwealth, 240 Ky. 790, 43 S.W.2d 34; Williams v. State, 64 Md. 384, 1 A. 887. The delay in making the autopsy related to the weight rather than to the competency of Dr. Mann's evidence.

Two assignments of error challenge the testimony of Nancy Johnson, "the other woman" in the case. Mrs. Johnson testified to an association with the defendant for a *17 number of years. She detailed many conversations, some by telephone. These involved their relationships, the defendant's promise of marriage, and his report later that his wife refused to consent to a divorce. The defendant admitted to Sheriff Shore that he called Nancy Johnson in Florida just before he started on the trip north to dispose of his wife's body which was then concealed in the trunk of his automobile.

While the defendant and the witness were in the new home after the body was found in Virginia and before it was identified, the defendant remarked to Nancy Johnson that if the body turned out to be his wife, "(A)ll this is ours." This evidence was competent on the question of motive. State v. Smoak, 213 N.C. 79, 195 S.E. 72. The testimony as to the contents of the burned letters was competent. State v. Neville, 157 N.C. 591, 72 S.E. 798; State v. Ferguson, 107 N.C. 841, 12 S.E. 574. Mrs. Johnson properly identified the author of the letters and testified she burned them. State v. Wilkerson, 98 N.C. 696, 3 S.E. 683; State v. Credle, 91 N.C. 640.

"* * * (T)he declarations, statements, and admissions of a defendant of facts pertinent to the issue, and tending, in connection with other facts, to prove his guilt of the offense charged, are competent against him in a criminal action." State v. Woolard, 260 N.C. 133, 132 S.E.2d 364; State v. Ragland, 227 N.C. 162, 41 S.E.2d 285; State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25; Wharton's Criminal Law, 12th Ed., Vol. 2, § 400.

Assignments of Error Nos. 17, 30, 39, 43, and 64 relate to the evidence of "another crime"arsenic poisoning. The first time this subject came into the evidence was by the testimony of Sheriff Shore quoted in the statement of facts. The defendant called the officers and told them Mrs. Porth fell down the steps and sustained fatal injuries; that he became panicky, realizing no one would believe the story because of the skeletons in his closet. In his panic he disposed of the body in such manner as to indicate a hitch-hiker had murdered her. In this conversation he said, "The arsenic deal is a separate deal and I will straighten it out later."

Nancy Johnson testified Mrs. Porth found out that her husband and the witness had been seeing each other while she was in the hospital. Mrs. Porth accused both of being responsible for her illness. The Solicitor asked Mrs. Johnson whether the defendant had ever told her "what she (Mrs. Porth) was suffering from." Her answer was, "Yesarsenic poisoning."

One of the assignments of error involved a question addressed to William Porth, son of, and witness for, the defendant. He had testified that he came home from Alaska for his sister's funeral in 1962. The solicitor's question: "Don't you know for a fact that your sister died from arsenic poisoning?" Answer: "No, sir, I don't." He was asked whether the family did not discuss arsenic poisoning. He said arsenic was never mentioned. The question and the answer were admitted over the defendant's objection. As bearing on the objection, it should be remembered that the defendant first brought up the "arsenic deal" as one of the skeletons in his closet. This was one of the reasons he assigned for his panic and his realization no one would believe that his wife had been killed by the fall down the steps. Nancy Johnson had quoted the defendant as saying Mrs. Porth was in the hospital because of arsenic poisoning. These clues alone were sufficient to justify the solicitor's efforts to find out if an attempt had been made to take Mrs. Porth's life by poisoning. Such efforts, if attributable to the defendant, would have obvious bearing on the question of premeditation. State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 96 A.L.R.2d 1422, certiorari denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49. However, the solicitor's effort to show by cross-examination of William Porth that his sister died as a result of arsenic poisoning was not warranted. The court should have sustained *18 the objection. There was nothing to show the daughter, at the time of her death, was a member of the defendant's household, or that by mistake she took arsenic poisoning which the defendant had intended for Mrs. Porth.

Absent a showing that the death of witness Porth's sister was caused by arsenic poisoning which was intended, not for her, but for her mother, the inquiry into the cause of the sister's death would appear to be improper as introducing evidence of a separate and independent crime. The rule, and the exceptions with respect to such evidence are fully discussed in State v. McClain, 240 N.C. 171, 81 S.E.2d 364. The question may be debatable whether the evidence of the sister's death by poisoning is governed by the general rule and should be excluded, or by the exceptions, and should be admitted. But assuming the question was improper, nevertheless, the answer was exculpatory and rendered the inquiry harmless.

The full context of the court's charge as disclosed by the record contains not only what the court actually charged but the defendant has embodied therein the contention as to what the court should have charged. The contention should be set forth only in the assignment of error.

The alleged error based on the court's refusal to permit Dr. Asteinza to testify that in his opinion the injuries he found on the body of Mrs. Porth could have been caused by a fall was cured by the court's later instruction that the evidence in his opinion was competent, and was then admitted and fully considered by the jury. Likewise, the solicitor withdrew his objection to the admissibility of the hospital records showing that Nancy Johnson had been in the hospital on several occasions and her condition diagnosed as schizophrenic. These records were before the jury as Exhibits Nos. 46 and 47.

State Trooper Dowdy, the first officer to view the body on the mountain, on cross-examination was asked if he did not make a report of the case. He testified he made a report to the Judge and the Commonwealth Attorney. This report was not required. He was then asked what was included in the report as the cause of death. The court sustained the State's objection. If permitted, the officer would have answered: "There definitely were no signs to indicate a violent death." He had testified to bruises apparent on the body but only an autopsy by a medical expert could determine the cause of death. Mr. Dowdy testified as to bruises and contusions he observed. This did not qualify him to testify as an expert witness and tell the jury, "There definitely were no signs to indicate a violent death." The court properly sustained the objection as the conclusion of an unqualified witness. State v. Arnold, 258 N.C. 563, 129 S.E.2d 229; State v. Mays, 225 N.C. 486, 35 S.E.2d 494.

We have given careful consideration to the defendant's assignments of error based on the court's refusal to dismiss at the close of all the evidence. Without reciting the details of the evidence, it discloses that Mrs. Porth died in the new home when no one but the defendant was with her. He claimed her injuries resulted from the fall. The medical testimony discloses that she died of concussion and shock. He told Sheriff Shore that he became panicky because of the other woman and the arsenic poisoning, concluded that no one would believe his story. For this reason, he stuffed the body in the trunk of his automobile and drove that night to Pulaski County, Virginia, where he placed the body by the side of the road and permitted it to roll down the side of Draper Mountain. Before he left, however, he called the "other woman" in Florida and invited her to come at once. She met him at the airport in Greensboro the following night. Apparently they lived together in and around Winston-Salem until the investigation began there. She then went back to Florida.

*19 The evidence before the court and jury was sufficient to furnish ample support for a conviction of murder in the first degree. Present was one of the strongest motives inducing a man to do away with his wife the other woman. The manner by which that objective was accomplished in this case shows premeditation, deliberation, the formation of a fixed purpose and design to kill, and a felonious execution of the design. The facts and circumstances in evidence clearly and from every angle point an accusing finger at the defendant. State v. Battle, 267 N.C. 513, 148 S.E.2d 599; State v. Bridgers, 267 N.C. 121, 147 S.E.2d 555; State v. Roux, 266 N.C. 555, 146 S.E.2d 654; State v. Moore, 262 N.C. 431, 137 S.E.2d 812; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.

Painstaking examination of the court's charge fails to disclose any error. When considered in its entirety, the instructions given the jury cover clearly, accurately and impartially all essential features of the case. In the verdict and judgment, we find

No error.