State v. . FoglemanState v. . Fogleman
The deceased was 61 years old. He conducted a mercantile business near a hard-surfaced highway 3 miles south of Leaksville, the direction of the highway being north and south. Parallel with the highway was a storeroom (occupied by the deceased) the length of which was about 30 feet and the width about 17 feet. The store porch was about 20 feet from the road. In the front part of the building were two doors — a single door on the north side and a double door near the center. Outside there was an oil pump near the south edge of the porch; anothеr just north of the double door; and another at a break in the level of the porch. There were also lights outside; one of them would be over an automobile standing in front of the door. Back of the store, separated by a partition were 3 rooms occupied by the dеceased and his family as a living apartment. Between the store and the first of these rooms was a screen door, the lower part of which, about five feet, was covered with a curtain; above the curtain there was an open space through which a person in the room could look into the storeroom.
On 30 April, 1932, between 9 and 10 o‘clock at night, while her husband was closing the windows, Mrs. Carter, who was then in the room adjoining the one just referred to, heard a car drive up in front of the store. At this time there were two lights outside and two inside the store. She heаrd some one say “Stick ‘em up,” and immediately a volley of shots was fired. Seven or eight bullets entered the body of the deceased; his death was instantaneous.
Mrs. Carter rushed through the screen door into the store. Looking over the curtain as she passed she saw a man inside the stоre door looking at her husband as the latter made his last step behind the stove. The
Mrs. Carter identified the prisoner as the man who had killed her husbаnd. She also described the car.
There was evidence that only a few hours before the deceased had been shot the defendant had been seen near Danville in a car the appearance of which was similar to that of the car seen by Mrs. Carter at the stоre; that it had been seen by others; and that it had subsequently been repainted.
Reeves Cooper, an uncle of the prisoner by marriage, testified that on 8 May, 1932, the prisoner had come to his house at about 9 o‘clock at night and had left a car of the description given by Mrs. Cаrter, except as to the color, which the State contended, had been changed by repainting. That night an officer took the car into his possession and found in it the following articles: A sawed-off shot gun, a brace and bit, a chisel, a flat iron, a wrench, a square and block, hаmmers, files, wire cutters, gun shells, overalls, shirts, and North Carolina, Virginia, and Kentucky license plates. The prisoner was arrested in Cincinnati, Ohio, in the month of June. The prisoner neither testified nor introduced any witness, and at the close of the evidence offered by the State he moved to dismiss the action as in case of nonsuit.
Mrs. Carter, the wife of the deceased, was the only witness who attempted to identify the assailant. On this point she was minute, as will appear from the following summary of her testimony: “As I went through the screen door I looked over the curtain and saw a man standing there just a step from the door, inside the door. He was looking at my husband . . . I asked him what he meant. He was about seven
It may be doubted whether our system of jurisprudence contains any principle more strictly defined than that which separates the functions of the courts from those of the jury. According to a custom that formerly prevailed evidence was submitted to a jury probably as a supplement to their own knowledge; but in a later period the custom was abandoned, and the jury assumed the character, since maintained, of a determining agency whose sole function is “to give a true verdict according to the evidence.” The discharge of this duty implies the necessity of examining the testimony, finding the facts, and applying the law to the facts as found.
There was no error in the court‘s denial of the motion to dismiss the action.
In addressing the jury, counsel for the private prosecution used language indicating that the wife of the prisoner knew what clothes the prisoner had worn on the night of the homicide, thereby intimating, it is contended, that she had not testified in his behalf. Attention has frequently been called to the fact that remarks of this character justify the award of a new trial in case of conviction unlеss the error is cured by the prompt action of the court. Upon objection by the prisoner, the court stopped the argument, directed the attorney to desist, and instructed the jury not to be influenced by the remarks to which objection had been made. In his charge his Honor specifically instructed the jury to exclude from their minds everything except the evidence and the law as declared by the court.
The same counsel suggested, also, that the prisoner had not testified in his own behalf by saying to the jury that the prisoner knew whether he had been in the automobile below the Dix home; but again the court promptly interposed. It is admitted in the prisoner‘s brief that the argument was stopped; and thereafter, at least three or four times in the charge, the court plainly instructed the jury not to permit the
According to the decisions of this Court the error of counsel in referring to the prisoner‘s declining to testify was cured by the immediate action of the court and the emphatic and repeated instruction given to the jury. S. v. Harrison, 145 N.C. 408. In this case it is said: “We undertake to correct the errors of the judge and not those committed by attorneys. Their errors are to be corrected by the trial judge, and when he fails in his duty it becomes a ground of exceptiоn.” So, also, as to the intimation that the prisoner‘s wife had not testified in his behalf. The court instantly suspended the argument and afterwards instructed the jury to disregard everything but the evidence and the law. The course thus taken conforms to the principle laid down in S. v. Spivey, 151 N.C. 676. The comment of counsel was improper, but as said in the case last cited his Honor fully corrected the error.
On the evening of 8 May, at about 9 o‘clock, the prisoner went to the home of Reeves Cooper and put his car in the shed. He left it there and immediately went away; he did not return. That night the car was seized by an officer. The description of it agreed in details with that of the car that had been stopped in front of the store on the evening of the homicide. Meanwhile no change had been made in its contents. The officer found in it the gun, the shells, and the implements abovе described. He testified to this effect and the prisoner excepted.
The exception is without merit. Evidence of this character is admissible on the principle that it tends to show a design or plan. The existence of such design or plan may be proved circumstantially as wеll as by direct utterance. In Wigmore on Evidence, it is said that in the production of such proof two sorts of circumstantial evidence are available: (1) Conduct as indicating the inward existence of a design; (2) prior or subsequent existence of the design, as indicating its existence at the time in question. Accordingly, “the acquisition or possession of instruments, tools, or other means of doing the act is admissible as a significant circumstance; the possession signifies a probable design to use; the instruments need not be such as are entirely appropriate, nor suсh as were actually put in use.” Vol. 1, secs. 88, 237, 238. Bishop says that it is competent to prove the possession of tools by a person charged with crime, even those not adapted to the crime if found with others which are adapted to its commission; and, according to Underhill, all the details of the finding may be proved, it being immaterial that the tools found were not adapted to the commission of a specific act. 3 Bishop‘s New Crim. Procedure, sec. 151; Underhill‘s Crim. Evidence, sec. 570.
These significant facts should be kept in view: The prisoner owned the car; some of the tools were suitable for use in burglary; the gun and shells, for use in burglary or robbery. A difference in the use to which the various articles were adapted does not precludе the admission of proof that they were in the prisoner‘s possession.
The indictment contains two counts, the first charging the essential facts of murder as required by
We have considered the prisoner‘s exceptions with care, and find no error in the trial. In no view of the evidence was there any provocation on the part of the deceased, who was ruthlessly slain while in the prosecution of his daily task. The doctrine of manslaughter was eliminated, the question being whether the prisoner was guilty of murder in the first or second degree, or not guilty.
No error.
BROGDEN, J., dissents.