State v. . Bittings

Jun 20, 1934

Versions:206 N.C. 798

175 S.E. 299

1934 N.C. LEXIS 312

Stacy, C. J.,

after stating the case: If this were not a capital case, it would be necessary to affirm the judgment, on motion of the Attorney-General, for failure properly to present exceptive assignments of error. S. v. Freeze, 170 N. C., 710, 86 S. E., 1000; S. v. Kelly, ante, 660. In defense of counsel now appearing for the prisoner, however, it should be said they did not represent him at the trial or in the court below.

No excejflions were taken to the admission or exclusion of evidence and none properly to the charge. There was a formal motion to set aside the verdict and one in arrest of judgment, to which exceptions were entered, but otherwise the assignments of error are without exceptions to support them.

*801 Speaking to a similar situation in Boyer v. Jarrell, 180 N. C., 479, 105 S. E., 9, the Court, quoting with approval from Harrison v. Dill, 169 N. C., 542, 86 S. E., 518, said: “The object of an assignment of error is not to create a new exception, which was not taken at the hearing, hut to select from those which were taken such as the appellant then relies on after he has given more deliberate consideration to them than may have been possible during the progress of the trial or hearing. The assignment of error, therefore, must be based upon the exception duly taken at the time it was due in the orderly course of procedure, and should coincide with and not be more extensive than the exception itself. In other words, no assignment of error will be entertained which has not for its basis an exception taken in apt time.”

Again, in In re Will of Beard, 202 N. C., 661, 163 S. E., 748, it was said: “The assignments of error are presumably based upon exceptions in the record, though they are neither brought foward nor specifically pointed out. Merriit v. Dick, 169 N. C., 244, 85 S. E., 2. This falls short of the requirements of Rule 19, see. 3, of the Rules of Practice in the Supreme Court, 200 N. C., 824; Rawls v. Lupton, 193 N. C., 428, 137 S. E., 175. Only exceptive assignments of error are considered on appeal. Dixon v. Osborne, 201 N. C., 489; Sanders v. Sanders, 201 N. C., 350, 160 S. E., 289; S. v. Freeze, 170 N. C., 710, 86 S. E., 1000. The Constitution, Art. IY, sec. 8, empowers the Supreme Court Ho review on appeal any decision of the courts below, upon any matter of law or legal inference’; and this is to be presented in accordance with the mandatory rules of the Supreme Court. Calvert v. Carstarphen, 133 N. C., 25, 45 S. E., 353. The Court has not only found it necessary to adopt rules of practice, but equally necessary to enforce them and to enforce them uniformly. Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126; Byrd v. Southerland, 186 N. C., 384, 119 S. E., 2.

“Furthermore, ‘exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.’ Rule 28; Gray v. Cartwright, 174 N. C., 49, 93 S. E., 432. The relation between appellants’ brief and the record is discernible only after a voyage of discovery. Sturtevant v. Cotton Mills, 171 N. C., 119, 87 S. E., 992. For this, we are furnished no guides.”

Likewise, in Rawls v. Lupton, 193 N. C., 428, 137 S. E., 175, and Cecil v. Lumber Co., 197 N. C., 81, 147 S. E., 735, attention was called to the fact that these requirements are statutory, C. S., 643, as well as mandatory under numerous decisions of the Court. The Supreme Court on appeal exercises only appellate jurisdiction, and it is necessary that the errors alleged should be presented as the law directs. S. v. Webster, 121 N. C., 586, 28 S. E., 254.

*802 Objections to the admission of incompetent evidence, or the exclusion of competent testimony, may be waived by failure to object in apt time. S. v. Steen, 185 N. C., 768, 117 S. E., 793. Similarly, other errors, not appearing on the face of the record proper, may be waived by failure to note objections or properly to assign errors and discuss them on brief. Merritt v. Dick, 169 N. C., 244, 85 S. E., 2.

In the present case, for instance, if the defendant wished to challenge the sufficiency of the evidence to show premeditation and deliberation beyond a reasonable doubt, as indicated on the argument, motion to nonsuit under C. S., 4643, on the capital charge, should have been lodged at the close of the State’s case, exception noted, if overruled, and the motion renewed at the close of all the evidence, exception again noted, if overruled; and, in preparing the statement of case on appeal, an assignment of error should have been made based upon this second exception. S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Sigmon, 190 N. C., 687, 130 S. E., 854; S. v. Killian, 173 N. C., 792, 92 S. E., 499; Nowell v. Basnight, 185 N. C., 142, 116 S. E., 87; Batson v. Laundryf 202 N. C., 560, 163 S. E., 600; Nash v. Royster, 189 N. C., 408, 127 S. E., 356. But no such exception and assignment of error appear on the record. In lieu of this, the defendant might have moved for a directed verdict on the capital charge, noted an exception, if overruled, and predicated an assignment of error upon this exception. But the record contains no such exception and assignment of error. The question therefore is not properly presented.

An attentive reading of the opinion in Rawls v. Lupton, supra, ought to acquaint appellants with the mechanics of taking exceptions, bringing them forward in the assignments of error, and preserving them by discussing them on brief, as required by Rules 19(3), 21 and 28 of the Rules of Practice in the Supreme Court, 200 N. C., 824-827-831. See, also, S. v. Lea, 203 N. C., 13, 164 S. E., 737; Carter v. Bryant, 199 N. C., 704, 155 S. E., 602, and Riggan v. Harrison, 203 N. C., 191, 165 S. E., 358.

But treating the assignments of error as supported by exceptions, they appear to be without merit. The court in charging the jury, and while stating the contentions of the State, said: “ . . . that then his flight from the scene and his flight as far as Pennsylvania was a circumstance indicating, in recognition of the fact of his own guilt.” This is assigned as error.

There are two reasons why the assignment cannot be sustained. In the first place, exceptions to the statement of contentions, not called to the attention of the judge at the time, so as to give him an opportunity to correct them, if erroneous, are treated as waived or ineffectual on *803 appeal. S. v. Lea, 203 N. C., 13, 164 S. E., 737; S. v. Sloan, 199 N. C., 598, 155 S. E., 258; S. v. Steele, 190 N. C., 506, 130 S. E., 308; S. v. Parker, 198 N. C., 629, 152 S. E., 890; Mfg. Co. v. Building Co., 177 N. C., 103, 97 S. E., 718; S. v. Little, 174 N. C., 800, 94 S. E., 1; S. v. Foster, 172 N. C., 960, 90 S. E., 785. In tbe next place, the contention itself was legitimate. S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Mull, 196 N. C., 351, 145 S. E., 677; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Stewart, 189 N. C., 340, at p. 347, 127 S. E., 260; S. v. Malonee, 154 N. C., 200, 69 S. E., 786. The court was not undertaking to state the law of flight in giving the State’s contention. S. v. Mull, supra; S. v. Steele, supra.

It is not perceived upon what theory error was committed in refusing to set aside the verdict or to arrest the judgment. A judgment in a criminal prosecution may be arrested, on motion duly made, when— and only when— some fatal error or defect appears on the face of the record. S. v. McKnight, 196 N. C., 259, 145 S. E., 281. The trial seems to have been conducted in strict conformity to the law, and with due regard for the rights of the defendant.

The intentional killing with a deadly weapon, admitted by the defendant, raised sufficient presumptions to establish an unlawful killing with malice, which is murder in the second degree, S. v. Keaton ante, 682, and the record contains ample evidence to support the finding of the additional elements of premeditation and deliberation necessary to constitute murder in the first degree. S. v. Evans, 198 N. C., 82, 150 S. E., 678; S. v. Miller, 197 N. C., 445, 149 S. E., 590; S. v. Steele, 190 N. C., 506, 130 S. E., 308; S. v. Merrick, 172 N. C., 870, 90 S. E., 257; S. v. Cameron, 166 N. C., 379, 81 S. E., 748; S. v. McClure, 166 N. C., 321, 81 S. E., 458; S. v. Daniels, 164 N. C., 464, 79 S. E., 953; S. v. Exum, 138 N. C., 599, 50 S. E., 283; S. v. Thomas, 118 N. C., 1113, 24 S. E., 431; S. v. Norwood, 115 N. C., 789, 20 S. E., 712.

The defendant’s plea of self-defense was rejected by the jury. S. v. Glenn, 198 N. C., 79, 150 S. E., 663. It is observed that his wife and children were not called as witnesses in his behalf. It is not known whether they would have corroborated his testimony. This was a matter for his counsel to decide.

There is nothing appearing on the record which would warrant the Court in disturbing the verdict or the judgment. They will therefore be upheld.

No error.