This case first came to us as a joint appeal by Roy Lee Fox and Carson McMahan, who had been tried with the other two defendants jointly indicted with them. Neither Roy Lee Fox nor Carson McMahan had testified, yet the confession of each, which implicated the other, had been admitted in evidence. This error necessitated a new trial and, in ordering it, we directed that defendants Roy Lee Fox and Carson McMahan be tried separately unless the State relinquished their confessions.
State v. Fox,
Upon the second trial, as in the first, all the evidence tended to show: Defendant and the three other persons named in each indictment had conspired to break and enter, during the night time, the dwelling occupied by Mr. and Mrs. Lunsford for the purpose of robbing Mr. Lunsford of his billfold. In furtherance of the conspiracy, defendant accoutered Donald and Arrlie for *17 the burglary, drove them to the locale, and gave Donald the pistol with which he thereafter shot Mrs. Lunsford during the attempt to rob Mr. Lunsford. While Donald and Arrlie went into the house to rob Lunsford, defendant drove around in the vicinity and returned to pick them up.
Defendant’s first two assignments of error are that the trial judge erred (1) in “allоwing” defendant to be retried upon the two original indictments in which he and three others were jointly charged with first-degree murder and burglary; and (2) in consolidating the two charges against defendant for trial. It is obvious, however, that the nature of the case dictated this procedure.
When a murder is “committed in the perpetration or attempt to perpetrate any .. . robbery, burglary or other felony,” G.S. 14-17 declares it murder in the first degree. In those instances the law presumes premeditation and deliberation, and the State is not put to further proof of either.
State v. Bunton,
In each of the two bills upon which defendant was tried it was entirely proper to name the four persons who had conspired tо rob Mr. Lunsford even though no conspiracy was expressly averred. State v. Maynard, supra. However, since Roy Lee Fox himself did not enter the Lunsford home and was not actually present when Mrs. Lunsford was killed, the State was required to prove that he had conspired with Arrlie and Donald Fox who actually committed the burglary and murder.
Defendant’s argument that it was error to retry defendant on the original indictment is that “by so doing the court
*18
allowed evidence to be presented to the grand jury as to codefendants implicating the defendant thereby taking from him one of the legally required steps looking toward the seсond trial.” The statement is puerile. Equally so is the statement that when the court consolidated the charges of murder and burglary, two offenses which grew out of one continuous criminal episode, the court “thereby compounded the original biased advantage that the State was allowed to take in the matter of the evidence that could be presented against the codefendants who were not on trial.” When two or more indictments are founded on one criminal transaction G.S. 15-152 contemplates that the court will consolidate them for trial.
State v. Arsad,
The third assignment of error is that the court failed “to allow challenges for cause on jurors who were prejudiced as a result of knowledge admitted regarding adverse publicity about the defendant.” This assignment of error, in complete disregard of our rules, does not specifically set out the jurors’ “knowledge admitted” upon which the alleged error is predicated.
State v. Kirby,
Defendant’s case on appeal does not disclose whether, after he had exhausted his peremptory challenges, he unsuccessfully attempted to challenge an additional juror. Because of this inconclusiveness we read the 704-page transcript of the proceed *19 ings incident to the selection of the jury. It revealed that when twelve jurors had been selected defendant had exhausted only ten of his fourteen peremptory challenges and that, in response to a direct question from the judge, defendant stated he was “satisfied with them (the jurors) to hear his case.” Thereafter three alternates were selected. In the selection of the first, defendant used his four unexpended challenges and one other. Before the second was seated he had used his two peremptory challenges, but he did not challenge the juror who was finally sworn as the second alternate. In the selection of the third alternate, defendant used only one peremptory challenge.
Defendant’s fourth assignment of error is that the court failed “to allow additional peremptory challenges for the alternate jurors and the defendant did exhaust his challenges at the time of the trial.” In his brief, defendant makes this statement: “The Court over the objection of the defendant (R. pp. 34) ruled that the defendant would be allowed two challenges for ALL alternate jurors selected not two EACH as the statute reads and intended.” Both the record and the certified transcript belie this statement. After defendant had exercised his first peremptory challenge during the selection of the second alternate the court said to counsel: “So there will be no misunderstanding I am going to hold that there will be two challenges as to each alternate because I don’t know now whether there will be two or three alternates.” This ruling was in conformity with G.S. 9-18 which provides that in the selection of alternate jurors after the regular jury has been impaneled, “Each party shall be entitled to two peremptory challenges as to each such alternate juror, in addition to any unexpended challenges the party may have left after the selection of the regular trial panel.” Clearly the court did not deprive defendant of any peremptory challenge to which he was entitled, nor was defendant forced to accept any juror whom he had challenged peremptorily or for cause.
“Numerous decisions of this Court,
e.g., State v. Dixon,
We find nothing in the case on appeal or transcript which suggests that defendant was not tried by a fair and impartial jury. Of the twelve jurors selected on the regular panel six were opposed to capital punishment; one was not asked his views; four “believed in” capital punishment only in “some cases.” Only one stated without equivocation that he “believed in” capital punishment. Of the two alternates who werе substituted for regular jurors, one did not believe in capital punishment and the other believed in it only “in some cases.”
Defendant’s fifth, sixth, and seventh assignments are that the court erred in admitting in evidence the transcript of the testimony given by Mr. Lunsford at the first trial (S-33), and in allowing it to be read to the jury by the special prosecutor, Mr. Swain. Defendant’s objection to this transcript was “to the introduction or reading of either all or part of it.” This was a broadside objection to the entire transcript. Upon such an objection it was properly admitted if any part of it was competent.
Grandy v. Walker,
The transcript of Lunsford’s testimony was properly received in evidence, and the judge specifically admitted it “subject to the competency, relevancy and materiality” of
*21
specific questions and answers. Before it was read to the jury counsel for defendant and the State went through it and mаrked certain portions thereof which were not to be read. Presumably they agreed that these portions were either “irrelevant or incompetent.” In any event, defendant interposed no objection to specific questions or answers in the transcript. This he was required to do if he would challenge their competency.
Grandy v. Walker, supra.
Nor did he object that specific questions and answers had been deleted. The entire transcript was offered and defendant, although reserving his right to object to the whole, concurred in the omissions.
Allen v. Allen,
The assignment of error that the cоurt permitted the special prosecutor to read the transcript instead of the court reporter is unsupported by any exception taken during the trial. The transcript reveals that when the judge asked who would read the stenographic report of Mr. Lunsfords’ testimony to the jury Mr. Swain said, “. . . [P] erhaps the simplest way would be to have me to read it, read the whole thing.” The court’s reply was, “All right,” and defendant made no objection. An assignment of error which is not supported by an exception previously noted in the case on appeal presents no question of law for this Court to decide.
Bulman v. Baptist Convention,
Assignment No. 8 is that the court erred “in allowing the testimony as to injuries to other than the deceased, Mrs. Ovella Lunsford.” Assignment of error No. 9 is that the court erred “in failing to allow defendant’s written motion to suppress identification of exhibits out of the presence of the jury prior to the preliminary investigation as to each exhibit’s admissibility.” Assignment No. 12 is that the court erred “in allowing statements made by Charles Houston Lunsford and others to
*22
be received into evidence.” These assignments of error are typical and characterize the work which went into the entire case on appeal. They manifest counsel’s failure to inform himself of the rules of this Court and the numerous decisions calling attention to them. When the assignment is that the court erred in the admission or rejection of evidence the evidence itself must be set out in the assignment, and “a mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient.” In Re Will of Adams,
Although the foregoing three assignments present no question for our consideration, for the reasons hereinafter set out, we have deemed it appropriate to consider every assignment of error which counsel has attempted to make. The description of Mr. Lunsford’s wounds given by Dr. John C. Young, who saw him at the hospital after his wife was shot, was competent not only to corroborate the testimony of Mr. Lunsford but also to show the felonious purpose of the two men who had inflicted them after invading the Lunsford home.
State v. Payne,
Assignments 8, 9, and 12 are overruled. So also is Assignment 10, which charges that the court erred in failing to allow defendant’s motion to sequester the State’s witnesses. The motion of defendant for the sequestration of the witnesses was addressed to the discretion of the court, and no suggestion of abuse appears upon the record.
State v. Yoes
and
Hale v.
State,
Assignment No. 21 is that the court erred in allowing Sheriff Clay to testify that the arrest sheet (a record of his office) showed that defendant was arrested at 4:30 p. m. on Fridаy, 13 November 1964. This evidence was elicited during the State’s attempt to establish the time Sheriff Clay first talked to defendant. When he did not recall the exact time, Mr. Swain asked him if he knew “about what time” defendant was brought to the sheriff’s office. The answer was, “Yes sir, the arrest sheet shows he was arrested at 4:30.” Defendant objected but made no motion to strike the answer. That the quoted statement was not prejudicial to defendant, however, is so apparent that no discussion of this assignment is required. The sheriff could, of course, have used the arrest sheet to refresh his recollectiоn. Stansbury, N. C. Evidence § 32 (2d ed. 1963).
In his brief defendant specifically abandons assignments of error 11, 13, 15, 19, 20, 22, and 23.
Assignments 14, 16, and 17 relate to defendant’s confession. Assignments 14 and 16 are that its admission was error “in the light of the arrest of his family and other circumstances of his confinement” and because it “was unsigned and not verified by him in any way.” Assignment 17 is that it was error to allow in evidence “a paper writing purporting to be the confession of Roy Lee Fox when the best evidence would have been an alleged recording which was not produced by the State.”
In his brief defendant says, “. . . [T]he judge should not have made the findings of fact as he did at the time the confession was allowed in evidence.” Apparently defendant attacks the admissibility of his confession upon the assumption that the judge was bound by his statements on
voir dire
and required to disregard any conflicting testimony given by law
*24
enforcement officers or others. This, of course, is not the law.
State v. Clyburn,
On defendant’s first trial the judge failed to make any finding with reference to the time defendant requested the jailer to call an attorney (Mr. Jackson) for him. In sending the case back for a retrial we said: “If Roy voluntarily made the statement (S-42), or the earlier one which was not transcribed, and
thereafter
requested counsel for the first time, hе was not deprived of his Sixth Amendment right to counsel. If, however,
after
he had requested an attorney, and
before
he was given an opportunity to confer with him, officers continued to interrogate Roy, any incriminating statement thus elicited cannot be received in evidence against him. The ruling upon the admissibility of any statement which Roy may have made must await the findings of material facts to be made by the judge at the next trial.”
State v. Fox, supra at
295,
Both defendant’s confession and his first trial antedated the decision in
Miranda v. Arizona,
A confession is generally defined as an acknowledgment in express words by the accused in a criminal case of his guilt of the crime chargеd or of some essential part of it.
State v. Hamer,
Defendant’s confession, which was admitted in evidence, was the oral statement which he made to the sheriff in the jail and again in the sheriff’s office. The transcription of the recording made during defendant’s second statement to the sheriff (S-42) — which defendant never signed — was admitted in evidence solely for the purpose of corrobоrating the sheriff’s testimony as to what defendant had said to him. The sheriff testified that this transcription, which had been transcribed by the court reporter, Mrs. Israel, was “an exact copy of the words which were spoken between (himself) and Roy Lee Fox on November 14, 1964 and as recorded.”
The transcript was clearly competent to corroborate Sheriff Clay’s statement of defendant’s confession. In any event, however, its contents were merely repetitive of the sheriff’s testimony, and no prejudice could have resulted to defendant from its admission. The case of
State v. Walker,
Defendant's contention that S-42 was inadmissible because “the best evidence would have been the alleged recording” is likewise without substance. “The best evidence rule applies only where the
contents
or
terms
of a document are in question.” Stansbury, N.C. Evidence § 191 (2d ed. 1963). In
State v. Ray,
The final assignment (No. 18) is that “the Court erred in its comments, ruling, and procedures which resulted in the State being assisted in the prosecution of its case to the prejudice of the defense. Defendant’s exceptions Nos. 23, 25, 26, 33, 34, 39, 40, 42 and 43 (R. pp. 66-83).” The assignment reveals its failure to point out the alleged errors relied upon. It therefore presents no question for our consideration. State v. Kirby, supra. Notwithstanding, we have examined each of the exception numbers to which it refers and find all to be wholly without merit. Indeed, only one (No. 34) is supported by an objection interposed during the trial. That objection was to a properly identified photograph, taken in the Lunsford home, which was offered to illustrate the testimony of Mr. Lunsford. Two of the exceptions which counsel inserted at the time of making up the case on appeal relate to recеsses of the court — one taken for the convenience of defendant — which the court called on his own accord. Exception No. 40 is to the statement of Deputy Sheriff *27 Johnson that he had received the exhibits which had been offered in evidence at the first trial. His next statement revealed that he received them on 6 November 1967 for the purpose of delivering them to the Clerk of the Supreme Court. At the time this testimony was elicited defendant did not object to the question or move to strike the answer. However, his failure to do so is immaterial; the evidence was competent. Exceptions 28 and 42 were inserted in the case on appeal at two points in the trial where the court in its discretion permitted Mr. Swain to withdraw a witness for the purpose of qualifying an exhibit about which he wished to question the witness. Nos. 25 and 26 relate to statements made by the judge when the prosecution offered in evidence three photographs to which defendant made no objection. Notwithstanding, the court declined to receive them because one (S-21) had not been identified and two (S-8 and S-9) illustrated no evidence which had been introducеd up to that time. Assignment No. 18 is overruled.
We note that defendant has assigned no error to the charge of the court and that it was not included in the case on appeal. It is presumed, therefore, that the court correctly instructed the jury on every phase of the case, both with respect to the law and the evidence.
State v. Hines,
Because this is defendant’s second appeal from a conviction upon two indictments for capital crimes which occurred almost six years ago we have examined the record of the trial below with great care. Our tаsk was hampered and made onerous by an inaccurate record and a carelessly prepared case on appeal. Appellant’s counsel, whose responsibility it is to make certain that all essential parts of the record are filed in this Court, that the case on appeal is in compliance with our rules, and that it presents a clear and accurate account of the proceedings below, failed in this duty. Omitted from the record were the bill of indictment in case No. 24-856 and the verdicts in both cases Nos. 24-856 and 25-854, “essential parts оf the transcript record in a criminal action brought to this Court.”
State v. Stubbs,
The Attorney General, in two addenda, supplied the omissions of the essential portions of the record so that we might review the case. He also secured a certified transcript of the stenographic report of the trial in order to determine the order in which procеedings were had and when they were out of the presence of the jury. At the instance of defendant’s counsel and with the consent of the Attorney General, another addendum was filed to add assignments of error which counsel had omitted. These addenda, of course, increased the expense of a case which had already cost in excess of $21,000.00. Unwilling to impose the penalty of a new trial upon the State and county unless justice actually required it, we waived the failure to comply with our rules and did what was necessary to inform ourselves as to what actuаlly happened at the trial. Having done so, we are satisfied that the case was well and fairly tried by the judge below and that, during the trial, defendant was adequately represented by counsel who fully protected his rights. On appeal we have seen to it that defendant’s right to have his trial fully reviewed has not been prejudiced.
Although the primary duty of preparing and docketing a true and adequate transcript of the record and case on appeal in a criminal case rests upon defense counsel, G.S. 1-282, G.S. 15-180, it is the duty of the solicitor to scrutinize the copy which appellant serves upon him. If it contains omissions, errors, or misleading juxtapositions it is the solicitor’s responsibility to file exceptions or a counter case within his allotted time. He tried the case before the jury, and he is the State’s only representative who is in position to evaluate the appellant’s statement of the case on appeal. The Attorney General, who must defend the case in the Appellate Division, is dependent upon the solicitor for a valid record of the trial below. When the solicitor accepts the defendant’s case on appeal and it is certified to the Appellate Division, it imports verity and the appellate court is bound by the record as certified.
State v. Miller,
No error.