State v. . Alston

May 31, 1939

Versions:215 N.C. 713

3 S.E.2d 11

1939 N.C. LEXIS 353

Stacy, C. J.

The record discloses that on 23 December, 1937, the defendant struck the deceased over the head with a stick of wood, robbed her, and left her to die, which she did as a result of the blow inflicted by the defendant.

The deceased was a Negro woman 103 years of age. She lived in Durhаm with two of her grandchildren. The defendant had been living-in the house for about two weeks. He knew thе deceased carried money on her person. After the grandchildren had gone to wоrk, the defendant went to the room of the deceased, hit her over the head with a stick, аnd robbed her of $12.00 in currency which she had in a little bag tied to her dress. The defendant then went to the home of his mother, changed his clothes, got a hair cut at a barber shop, and never returned to his room in the house of the deceased. He told the officers that ho robbed thе deceased and struck her for that purpose, but did not intend to kill her. He further testified that he wаs too drunk to know what he was doing at the time.

The jury was evidently not impressed with the defendant’s plеa of irresponsibility. S. v. Walker, 193 N. C., 489, 137 S. E., 429; S. v. English, 164 N. C., 497, 80 S. E., 72. He showed too much sprightliness in and about the robbery, and thereafter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍departing, for one who had been drinking to drunkeness. S. v. Myrick, 203 N. C., 8, 164 S. E., 328; S. v. Ross, 193 N. C., 25, 136 S. E., 193. He knew what he was doing. S. v. Murphy, 157 N. C., 614, 72 S. E., 1075.

Moreover, it appears that the murder was committed in the perpetration of a robbery. S. v. Lane, 166 N. C., 333, 81 S. E., 620; S. v. *715 Logan, 161 N. C., 235, 76 S. E., 1. It is provided by O. S., 4200 tbat a murder “which shall be cоmmitted in the perpetration or attempt to perpetrate any . . . robbery ... or other felony, shall be deemed to be murder in the first degree.” S. v. Gosnell, 208 N. C., 401, 181 S. E., 323; S. v. Donnell, 202 N. C., 782, 164 S. E., 352; S. v. Miller, 197 N. C., 445, 149 S. E., 590. The question of premeditation and deliberation or the defendant’s malice aforethought in murdering the deceased, therefore, was not perforce material to the inquiry. S. v. Logan, supra. The defendant slew the deceased while perpetrating a robbery from her person. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍This is pronounced by the statute as murder in the first dеgree. S. v. Stefanoff, 206 N. C., 443, 174 S. E., 411. S. v. Myers, 202 N. C., 351, 162 S. E., 764; S. v. Donnell, 202 N. C., 782, 164 S. E., 352.

The defendant’s principal exception, or the one chiefly urged on argumеnt and in brief, .relates to the admission in evidence of an alleged confession or statеments made by the defendant to the officers while in their custody. S. v. Exum, 213 N. C., 16, 195 S. E., 7; S. v. Gray, 192 N. C., 594, 135 S. E., 555. The voluntariness of the confеssion was the subject of a preliminary inquiry in the absence of the jury. After hearing the State’s witnessеs, who fully supported the solicitor’s contention, the court inquired of the defendant whether hе wished to be heard on the competency of the alleged confession. S. v. Smith, 213 N. C., 299, 195 S. E., 819. “Whereuрon counsel for defendant stated to the court that they did not desire to offer testimony upon the preliminary question before the court as to whether or not said statements were free and voluntary or otherwise.” (R., p. 30.) The court thereupon adjudged the statements to be admissible in evidence. The defendant noted an exception. The court again statеd to the defendant that he was entitled to be heard on the preliminary inquiry touching the volun-tarinеss of the alleged confession. “Counsel for defendant stated that they did not desire to offer such testimony before the court at this time.” (R., p. 30.) The exception is unavailing. S. v. Stefanoff, supra. The compеtency of the confession was a preliminary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍question for the trial court, S. v. Andrew, 61 N. C., 205, to be determined in the manner pointed out in S. v. Whitener, 191 N. C., 659, 132 S. E., 603, and the court’s ruling thereon is not subject to review, if supported by any competent evidence. S. v. Moore, 210 N. C., 686, 188 S. E., 421. The defendant waived his right to offer evidence on the preliminary inquiry. S. v. Hartsfield, 188 N. C., 357, 124 S. E., 629. He is in no position now to complain at the admission in evidence of the confession. S. v. Smith, supra. The court’s ruling is supported by ample evidence.

It is true, the defendant later testified to matters which, if believed, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍would have rendered the confession involuntary and'inadmissible. S. v. *716 Stevenson, 212 N. C., 648, 194 S. E., 81. But this was toо late. He should have offered his evidence on the preliminary inquiry when the court was seеking to determine its competency. The case is not like S. v. Anderson, 208 N. C., 771, 182 S. E., 643, where the involuntariness of the сonfession subsequently appeared from the testimony of a State’s witness. Here, the voluntаriness of the confession is fully supported by the State’s evidence.

The remaining exceptions are addressed to portions of the charge. The defendant thinks the court exprеssed an opinion, confused the jury in respect of manslaughter, and omitted to state in a рlain and correct manner the evidence given in the case and to declare and explain the law arising thereon. C. S., 564. None of these exceptions can be sustained. They are all settled by previous decisions. It would only be a matter of repetition to cоnsider them seriatim. Any error in the charge on the issue of manslaughter would seem , to be harmless, as under thе evidence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court might well have limited the jury to a consideration of the capital offense or an acquittal. S. v. Linney, 212 N. C., 739, 194 S. E., 470.

As no reversible error has been made to appear, the verdict and judgment will be upheld.

No error.