State v. . MatthewsState v. . Matthews
Indictment for murder. From judgment, reciting that “the jury had rendered a verdict, in due form, that the defendant is guilty of murder in the first degree, with recommendation of mercy,” and adjudging that “said Rory Matthews shall suffer death by electrocution in the manner provided by law,” defendant appealed to the Supreme Court. The indictment to which defendant, upon his arraignment entered a plea of “Not Guilty,” was sufficient in form to support either of four verdicts, to wit: (1) Guilty of murder in thе first degree; or (2) guilty of murder in the second degree; or (3) guilty of manslaughter; or (4) not guilty. Upon either of these verdicts, it was the duty of the court, i. e., of the presiding judge, to render judgment as prescribed by the law of this State.
Upon a verdict that the defendant is guilty of murder in the first degree, the judgment prescribed by law is that the defendant suffer death (
Upon a verdict of guilty of murder in the second degree, or of guilty of manslaughter, the law prescribes that the judgment shall be that defendant be imprisoned; upon the former verdict, in the State prison, for a term not less than two nor more than thirty years,
It is the declared policy of the people of this State, with respect to punishment for crimes, that the object of punishment being not only to satisfy justice, but also to reform offenders and thus prevent crime (
If the verdict of the jury is “Not Guilty,” upon an indictment for murder, the judgment must, of course, be that the defendant be discharged from custody. There is no provision by statute or otherwise in this State for the rendition of a verdict of guilty of any crime, with a recommеndation of mercy, by the jury. Punishments for crime are prescribed by law; where the kind or amount of punishment is not fixed by statute, the discretion to be exercised is vested by law in the court or presiding judge. It is a sound, judicial discretion, “a liberty or
The record upon this appeal discloses that the evidence offered by both the State and the defendant was submitted to the jury under a full and correct charge by the court. This record contains the following statement: “After the jury had been out several hours, they sent a message to his Honor by the court officer to know if they could render a verdict with a recommendation of mercy. His Honor returned a verbal message in the affirmative.” To this instruction, defendant excepted. He assigns same as error. Thereafter the jury returned a verdict as follows: “Guilty of murder in the first degree with recommendаtion of mercy.” The court received this verdict as rendered; defendant moved that the verdict be set aside. This motion was denied, and defendant excepted. After judgment had been rendered upon the verdict as recorded, the court stated that the recommendation of mercy would be transmitted at the proper time to the Governor.
It should be noted that the defendant, by this assignment of error, presents his contention, not thаt it was error to receive the verdict as rendered by the jury, but that it was error for his Honor to instruct the jury that they might render a verdict upon the indictment in this case with a recommendation of mercy. This instruction was manifestly applicable to a verdict of guilty, only; it could not have been understood by the jury as applicable to a verdict of not guilty. The court had, in the charge to the jury, correctly instructed the jury that if they found the defendant guilty, thеy must say by their verdict, whether he was guilty of murder in the first degree, of murder in the second degree, or of manslaughter. There was evidence submitted to the jury from which they could have found facts, which under the instructions of the court, would have sustained either of the four verdicts permissible under the form of the indictment. Defendant admitted that he killed the deceased with a shot gun; all the evidence showed that
Where a verdict of guilty is rendered by а jury, including the words, “with recommendation of mercy,” or words of similar import, there is authority in this State for holding that such words are surplusage, and that they may be disregarded; S. v. Stewart, 189 N.C. 340; S. v. Snipes, 185 N.C. 743; S. v. Hancock, 151 N.C. 699; S. v. McKay, 150 N.C. 813. These cases are recognized by us as authorities, sustaining the holding that recommendation of mercy by the jury, in certain cases, may be disregarded as surplusage. Where the words, “with recommendation of mercy,” or words of similar import, included in, or forming a part of a verdict of guilty, are voluntary on the part of the jury, and are not so included in or made a part of the verdict, in consequence of an instruction to the jury, that they may return a verdict, with such recommendation, the words may be treated as surplusage, and the verdict received, and recorded, as a verdict of guilty. It is well, however, to be mindful of the words of the late Chief Justice Hoke, appearing in the opinion written by him, in S. v. Murphy, 157 N.C. 615. In this opinion, writing with wisdom gained from long experience, wide observation and deep reflection, he said: “Our trial courts should always require that juries in capital cases should definitely and expressly say of what degree of murder they convict the prisoner, and that the verdict should be recorded as rendered. In a case of this kind there should be no room for doubt or mistake.”
We must hold that it is error for the court to instruct the jury, either in the general charge, or in response to an inquiry made by
The identical question presented by this appeal was considered by the Supreme Court of Colorado in Hackett v. People, 8 P. 574. The question was there presented as follows: “The jury, after deliberating for a considerable length of time, and being brought into court at their own request, propounded the following question, `Can the jury endorse on the verdict a recommendation of mercy?’ To which question, the court answered by a written instruction that they could endorse such recommendation upon their verdict should they desire so to do. Thereupon they retired and soon after returned a verdict of guilty in manner and form as charged in the indictment. They also embraced in such verdiсt the following: `We, the jury, recommend the defendant to the mercy of the court.‘” In the opinion of the Court it is said: “Thus it appears that some of the jurors were opposed to a conviction for the grade of crime finally found in their verdict, and that they only consented thereto upon condition that the recommendation for mercy be incorporated. They must have been led to suppose, from the court‘s answer to their question, that this might have weight in mitigating the severity of the sentence to be pronounced. Any other explanation of the proceedings would be absurd; and it must be assumed that without such belief the verdict as returned would not have been agreed upon. Yet as the law then stood, the court was powerless to heed their suggestion. Upon a verdict in this form, it was his duty to pronounce a sentence of imprisonment for life. The law fixed the рenalty, and he could not subtract a single day. He must either set the verdict aside, and order a new trial, or enter the judgment fixed by the statute. The instruction mentioned was therefore misleading, and under the circumstances a fatal error.” See, also, Territory v. Greigo (N. M.), 42 P. 80, citing with approval Randolph v. Lampkin (Ky.), 14 S.W. 538; People v. Harris (Mich.), 43 N.W. 1060; McBean v. State (Wis.), 53 N.W. 497. See, also, 16 C. J., 1026, sec. 2459; 30 C. J., 432, sec. 682.
We have not overlooked the fact that it appears from the record that the communication between his Honor and the jury was by means of messаges conveyed by the court officer. Defendant does not rely upon this as error, but we would not be understood as approving this method of instructing a jury, especially in a case where a verdict may be rendered requiring under the law capital punishment. Where the life or death of a defendant is involved in the issue to be determined by a jury, he has a right to be present, in person, and with his counsel, whenever any evidence is submitted or any instruction is given to the jury relative to the issue. This right he cannot waive, S. v. Dry, 152 N.C. 813. The late Chief Justice Clark, writing the opinion for the Court, in that case says: “In every criminal prosecution it is the right of the accused to be present throughout the trial. In misdemeanors, this right can be waived by the defendant with the consent of the court, through his counsel. In felonies other than capital, the right to be present can be waived only by the party himself, S. v. Jenkins, 84 N.C. 813. In capital trials, this right cannot be waived by thе prisoner, but it is the duty of the court to see that he is actually present at each and every step taken in the progress of the trial; S. v. Paylor, 89 N.C. 539; Wharton Cr. Pl. Pr. (9 ed.), sec. 540 et seq.; 1 Bishop New Cr. Proc., sec. 271 (2), 273.” S. v. Hartsfield, 188 N.C. 357.
While not necessary to the disposition of this appeal, we deem it proper to consider defendant‘s assignments of error, based upon his exceptions to the overruling by the court of his objections, (1) to the use of certain photographs by witnesses for the State for the purpose of illustrating their testimony, describing the place where the homicide occurred, and the relative positions of deceased, of defendant, and of witnesses immediately before and at the time of the shooting, and (2) to the introduction of these photographs as evidence.
There was evidence that these photographs were made sometime after the homicide — at least a week; they were made under the direction of a witness for the State, who testified that he was present when defendant shot and killed deceased. Just before deceased was shot by defendant, he was at work, with six men in his employment and under his supervision, constructing a new road; there was an old road, which crossed the creek, and ran straight for about thirty-five yards, then turning to the right; the new road began at the point where the old road turned to the right, and then ran to thе left, up a hill; deceased was at work on an embankment, on the left side of the new road, thus being on the far side of said road from the old road; deceased had a grubbing hoe with which he was leveling the dirt hauled by the men to make a fill in the road, when defendant, accompanied by his nephew, appeared on the old road, with a shot gun in his hands; defendant spoke to one of
At the time the photograph was made, a witness for the State pointed out to the photographer the position of deceased when he was shot, the position in which he was holding the hoe, the position of defendant at the time he fired the gun, the position in which he held the gun; the positions at which witnesses for the State were standing; also, the position of deceased when he was raking dirt down from the embankment. He placed different persons in these positions, directing the person who represented deceased how to hold the hoe, and the person who represented defendant how to hold the gun. He thus undertook to reconstruct the scene of the homicide at the time of the shooting. The photograph shows correctly the different persons standing in the positions in which they were placed by the witness at the time the photograph was taken, and in which he testified the persons whom they represented were placed at the time of the homicide.
Defendant contends that it was error to permit witnesses to use this photograрh to illustrate their testimony or to permit the introduction of the photograph as evidence. Neither defendant nor his counsel were present when the photograph was made.
This Court has held that a photograph correctly representing the premises where the homicide occurred may be used by a witness for the State for the purpose of explaining his testimony; S. v. Mitchem, 188 N.C. 608. There must be evidence as to the correсtness of the photograph before it can be used for this purpose; S. v. Jones, 175 N.C. 709 and cases there cited. Hampton v. R. R., 120 N.C. 534. See, also, 22 C. J., 913; 10 R. C. L., 1153 et seq.
Whether or not there is sufficient evidence of the correctness of a photograph to render it competent to be used by a witness for the purpose of illustrating or explaining his testimony is a preliminary question of fact for the judge. In Davis v. R. R., 136 N.C. 116, Chief Justice Clark, who wrote the dissenting opinion in Hampton v. R. R., supra, says: “Photographs frequently convey information to the jury and to the court with an accuracy not permissible to sрoken words, if their
In S. v. Lutterloh, 188 N.C. 412, we held that it was not error for the trial judge to permit photographs, designed to show the width and general topography of the road, where the collision occurred, to be used by witnesses in explaining their testimony. The question presented by this record is whether a photograph made a few days after the homicide, which shows not only the topography of the scene, but which also shows, upon the scene of the homicide, as photographed, persons placed in positions when the photograph was taken which the State contends are the identiсal positions occupied by deceased, by defendant, and by witnesses, at the very moment of the homicide, may be used by witnesses to illustrate or explain their testimony and may also be received as evidence. The evidence tends to show that the photograph represents the scene of the homicide as reconstructed under the direction of a witness, who was present when the defendant shot the deceаsed, and that he placed the different persons in the positions as shown in the photograph. It was competent for this person to testify as a witness at the trial as to everything shown in the photograph, the location of the roads, the embankment on or near which deceased was at work when he first saw defendant, the positions occupied by deceased, by defendant, and by the witnesses at any moment from the time defеndant appeared on the scene until the fatal shot was fired. His testimony was evidence of these facts; we see no valid ground for objection to the use by the witness of the photograph which he testified was correct, to give to the jury more accurate information of the facts, as this witness testified them to be, than he could give by the spoken word. The witness was subject to cross-examination and could be contradiсted by evidence offered by defendant not only as to what he said as a witness, but also as to what the photograph, used by him to illustrate or explain his testimony, showed.
The photographs, taken under the circumstances under which the evidence shows these were taken, were not competent however as evidence, and upon objection by defendant should have been excluded. They were ex parte, and did not purport to rеpresent the scene at the time the
New trial.