166 S.E. 734 | N.C. | 1932
Criminal prosecution tried upon an indictment charging the prisoner with the murder of his wife, Dorothy Smith Stafford.
Verdict: Guilty of murder in the first degree.
Judgment: Death by electrocution.
The prisoner appeals, assigning errors. *602 The evidence on behalf of the State tends to show that in the early afternoon of 4 April, 1932, the prisoner shot and killed his wife under circumstances indicative of a mind fatally bent on mischief and a heart devoid of social duties. The deceased left her sick bed, in her mother's home, bare-footed, dressed only in her night clothes, and fled for her life a distance of about 580 yards down the hill to a spring and there hid herself in a ditch. The prisoner in pursuit, discovering her here in hiding, commanded her to come out of the ditch, which she did, falling at his feet and pleading that her life be spared. While in this position, the prisoner shot the deceased three times and killed her. He then turned the pistol upon himself and fired the fourth and last bullet into his own head, inflicting a wound which proved less than fatal.
The homicide is not denied. The defense interposed on behalf of the prisoner was that of mental irresponsibility or insanity. The evidence tending to support this plea was submitted to the jury and rejected or found to be unsatisfactory. S. v. Jones, ante, 374; S. v. Campbell,
The prisoner complains that Mrs. Dora Smith, a witness for the State, of her own volition and without notice or warning, knelt in an attitude of prayer as she approached the witness stand. "As soon as this was observed, the court ordered the witness to arise and if she desired to retire to her room, opportunity was given her to do so." Immediately following this injunction, she arose and took the witness stand. The prisoner noted an exception.
The conduct of the witness was unusual, to say the least, but the court seems to have dealt with it in a manner satisfactory at the time. The prisoner did not move for a mistrial, nor did he request the court to do more. Indeed, the prisoner might have pleaded former jeopardy had a mistrial been ordered ex mero motu. S. v. McKeithan, ante, 494; S. v.Ellis,
The record contains a number of exceptions, all of which have been examined, and none discovered of sufficient merit to warrant a new trial, but for jurisdictional reasons, the appeal must be dismissed. S. v. Golden,ante, 440.
First, the transcript fails to show the organization of the court (S. v.May,
In Spence v. Tapscott,
To like effect are the decisions in S. v. Preston,
Second, the attempted appeal is in forma pauperis, and the order allowing the prisoner to appeal without giving security for costs, while "finding from the petition filed herein on behalf of the defendant that he is unable to pay the costs of appeal or to enter into a bond with sufficient sureties for the payment of such costs," was apparently made without supporting affidavit as required by C. S., 4651. In response to request for such record, the clerk of the Superior Court of Wayne County reports: "I do not find affidavit of the defendant or certificate of his counsel in the papers." It was said in S. v. Moore,
It was suggested in this same case, S. v. Moore, supra, and repeated inS. v. Jackson,
Speaking to the subject in S. v. Divine,
Again, in S. v. Parish,
It is not the policy of our law to deny to any litigant his right of appeal, but inasmuch as he has no new trial in the Supreme Court, but only questions of law are to be determined, when a defendant in a criminal prosecution is unable to give security for costs, he is reasonably required to make affidavit (1) that he is wholly unable to give security *605
for the costs, (2) that he is advised by counsel he has reasonable cause for the appeal prayed, and (3) that the application is in good faith. S. v.Marion, supra; S. v. Moore, supra; S. v. Martin,
The seriousness of the offense in the instant case has caused us to examine the record, upon which we find no error. Judgment.
Affirmed. Appeal dismissed.