State v. Marsh
66 S.E.2d 684
N.C.
1951
Check Treatment
Stacy, C. J.,

after stating the facts as above: The defendant states in bis confession that, with axe in hand, he pursued Allen Phillips over the snow-covered pasture, across a barbed-wire fence, overtook him in the road leading to the barn, struck him a lethal blow on the head with the axe, felled and silenced him, robbed him and left him for dead. These facts alone, if true, and the jury has accepted them as such, render the legal questions debated on brief, assuming the defendant’s sanity, somewhat pedantic or academic. He certainly was not fighting in his own self-protection when his antagonist was trying to get away from him, and he does not so contend. His defense of drunkenness and mental irresponsibility was rejected by the jury. He could not have been very drunk when, with axe in hand, he chased Phillips a distance of some 40 or 50 yards, across the pasture, over a barbed-wire fence, down the road, and slew him. Nevertheless, he was given full benefit of his contention of inebriacy and mental deficiency in the court’s charge to the jury. S. v. Ross, 193 N.C. 25, 136 S.E. 193, as witness the following: “. . . while the defendant has no burden so far as establishing a lack of premeditation and deliberation — the State has the burden of showing that beyond all reasonable doubt before it can obtain a verdict of guilty of murder in the first degree — at the same time if the defendant has satisfied you that he did not have the mental capacity because of his drunkenness to deliberate and premeditate, he could not be guilty of murder in the first degree.” Accordant: S. v. Swink, 229 N.C. 123, 47 S.E. 2d 852; S. v. Harris, 223 N.C. 697, 28 S.E. 2d 232.

On the first count, however, as the jury convicted the defendant only of robbery and not of robbery with firearms as charged in the bill of indictment, the judgment imposed of from 25 to 30 years in the State’s Prison is in excess of that allowed by statute, Gr.S. 14-2. S. v. Surles, 230 N.C. 272, 52 S.E. 2d 880. Hence, the judgment on this count will be vacated and remanded for proper judgment, if for any reason the judgment on the second count is not carried out.

On the second count, that of murder, the defendant challenges (1) the voluntariness of his confession, (2) the sufficiency of the evidence to carry the case to the jury, and (3) the correctness of the charge.

First, The Voluntariness of the Defendant’s Confession:

The defendant made several statements to the investigating agent of the State Bureau of Investigation, one on 11 February, another on 12 February, while the defendant was in the hospital recovering from carbolic acid poisoning, and a third on 1 March, 1951, while he was in *105 jail, all in the nature of confessions. They were the subject of a preliminary investigation, touching their voluntariness, and ruled competent by the court. S. v. Thompson, 227 N.C. 19, 40 S.E. 2d 620; S. v. Biggs, 224 N.C. 23, 29 S.E. 2d 121. The ruling is supported by the record. S. v. Brown, 233 N.C. 202, 63 S.E. 2d 99.

The competency of a confession is 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. Alston, 215 N.C. 713, 3 S.E. 2d 11. The defendant offered no evidence on the preliminary inquiry. His present objection to the confession and the court’s ruling thereon must be overruled or held for naught. S. v. Bennett, 226 N.C. 82, 36 S.E. 2d 708. Of course, the confession is to be taken as a whole in its entirety, the part which makes in favor of the accused as well as the part which militates against him. S. v. Edwards, 211 N.C. 555, 191 S.E. 1. This seems to have been done on the trial.

Second. The Sufficiency of the Evidence:

The demurrer to the evidence was properly overruled. There is no part of the defendant’s confession which would seem to warrant ah acquittal. The exception appears to have been taken out of the abundance of caution. The motion was “for judgment as of nonsuit on both counts in the bill of indictment.” Note, the motion is not limited to a single count or any one degree of the crimes charged, but it is addressed to the entire bill or to both counts as a whole. The motion could not be allowed in the face of testimony to support either count or any degree of either count, of which there was ample evidence in the instant case. G.S. 15-173.

Third. Exceptions to the Charge:

The defendant objects to the following instruction: “In determining the questions of premeditation and deliberation it is proper for the jury to take into consideration the conduct of the defendant before and after, as well as at the time of the homicide and all attending circumstances.”

The excerpt seems to have been taken from the opinion in S. v. Evans, 198 N.C. 82, 150 S.E. 678. The criticism here is, that the “after” conduct of the defendant would include his flight and attempted suicide which may be considered only on the issue of guilt and not as tending to show premeditation or deliberation. S. v. Payne, 213 N.C. 719, 197 S.E. 573 (flight); S. v. Lewis, 209 N.C. 191, 183 S.E. 357 (flight); S. v. Mull, 196 N.C. 351, 145 S.E. 677 (flight); S. v. Hairston, 182 N.C. 851, 109 S.E. 45 (flight); S. v. Lawrence, 196 N.C. 562, 146 S.E. 395 (attempted suicide); S. v. Exum, 213 N.C. 16, 195 S.E. 7 (attempted suicide); S. v. Steele, 190 N.C. 506, 130 S.E. 308 (secreting body after killing). The objection appears somewhat strained as the after-attendant circum *106 stances would hardly include the defendant’s conduct on the following day. The court was here speaking to the purpose and intent in the defendant’s mind at the time of the homicide. This, the jury must have understood. Moreover, there is no mention in the court’s charge of the defendant’s attempted suicide or flight, save the bare recital that the defendant spent the night of the homicide at the home of his mother and stepfather “and left about daybreak the next morning.” Nor was there any request to charge on the significance of these circumstances or in what light they should be considered by the jury. Evidently, the defendant’s conduct long after the homicide was not a matter of debate on the hearing. The immediate circumstances were apparently sufficient. The contention presently advanced seems to have been an afterthought.

Exception is also taken to the instruction that in case- the jury should return a verdict of guilty of murder in the first degree, “You may for any reason and within your discretion add to that the recommendation, if you desire to do so, that he be imprisoned for life, in which event that disposition will be made of the case.”

The objection to this instruction is that it requires the jury to have a reason for such recommendation arising perhaps upon the evidence, whereas the statute, G-.S. 14-17, as amended by Chap. 299, Session Laws, 1949, commits the matter to the unrestrained discretion of the jury. S. v. McMillan, 233 N.C. 630, 65 S.E. 2d 212.

The criticism loses its force when considered with another portion of the charge. The court had previously instructed the jury that if they should render a verdict of murder in the first degree, then “You may, if you so determine, in your own discretion add to that verdict a recommendation of life imprisonment.”

Viewing the charge in its entirety and as a whole, as required by the established practice, we reach the conclusion that the exception is insufficient to overthrow the results of the trial.

■ There are other exceptions appearing on the record, some brought forward and discussed on brief, others not, which have received due attention, but as they appear insufficient to work a new trial we forego further discussion of them in the opinion. The several inexact expressions pointed out by the defendant are readily reconcilable under the rule of contextual construction. S. v. Bullins, 226 N.C. 142, 36 S.E. 2d 915; S. v. Exum, 138 N.C. 599, 50 S.E. 283; Speas v. Bank, 188 N.C. 524, 125 S.E. 398. “The charge must be considered contextually and not disjointedly.” Milling Co. v. Highway Com., 190 N.C. 692, 130 S.E. 724.

On the whole, the ease appears to have been tried in substantial conformity to the requirements of the decided cases or the pertinent authorities.

*107 While no objection has been interposed to the joinder of the two counts in the same bill, it may be observed that the usual practice, and perhaps the more desirable practice, is to try capital cases on sing-le-count bills, or bills containing only capital charges.

The validity of the trial will he upheld.

The result, then, is:

On the robbery count, Error and remanded (provisionally).

On the murder count, No error.

Note: This opinion was written in accordance with the Court’s decision and filed by order of the Court after Chief Justice Stacy’s death.

YaleNTIne, J., took no part in the consideration or decision of this case.