State v. MooreState v. Moore
The evidence introduced at the first trial is summarized in our former opinion.
State v. Moore,
In brief summary, the State’s evidence tended to show: For approximately three and one-half years prior to her death, on various occasions, defendant had beaten his wife into unconsciousness, intentionally inflicted personal injuries upon her, and had otherwise abused her. He had threatened to kill her if she ever left him. At the time of her death her face was still bruised and swollen from a beating he had given her several days earlier. On the morning of her death he telephoned his mother-in-law, Mrs. Woolard, and told her to come over and get the baby; that he was going to kill himself and Joanne. About twenty minutes later, defendant arrived at Mrs. Woolard’s home with the baby. Although the day was
Defendant’s evidence tended to show: He had never abused or injured his wife. On 7 March 1968 her face was bruised and swollen, but these injuries had occurred when she fell out of bed the preceding Sunday. Before breakfast, on the morning of her death, she had told him that she had talked to a lawyer; that her mother wanted her to divorce him and had taken pictures of her face to be used as evidence; that she was supposed to tell her mother that day what she intended to do about the divorce, but she did not then know what her decision would be. Defendant told her to make up her mind and let him know, that in the meantime he would be at his mother’s. Joanne, who was then preparing breakfast, asked him whether he wanted sausage or bacon, and he specified sausage. He then collected some clothes, his rifle and shotgun, and started with them to his truck. On the way out he shifted the gun and rifle from one arm to the other in order to reach for a pack of cigarettes on a table, and the gun — which he did not know was loaded — accidentally discharged. When he saw Joanne lying on the floor “with her head half blown off,” he called Mrs. Woolard to come for the baby; he did not tell her that he had shot Joanne. When Mrs. Woolard did not come he carried the child to her home. She asked him if he had beaten Joanne, and he said NO. When she asked him where he was going he said, “Well, I guess I’m going to the penitentiary, if I don’t kill myself.” He then borrowed some money from his brother and drove to West Virginia, but the next day returned to Beaufort County and surrendered to the police.
The decision on the first appeal was that defendant’s motion for nonsuit was properly overruled. Since the second-trial evidence did not differ materially from that of the first trial, the same ruling upon the motion for nonsuit was required.
State v. Peterson,
Thirteen of defendant’s assignments of error relate to the admission of testimony tending to show defendant’s conduct and attitude toward his wife on numerous occasions prior to her death. The competency of this evidence was established by our opinion in the former appeal, and no further discussion of it is required.
State v. Moore, supra
at 206-207;
State v. Kincaid,
Assignments of error 1, 19-22, 29, and 30 are directed (1) to Clarence Bullock’s testimony that Joanne’s failure to say anything to defendant on an occasion about three months before her death-made
him mad,
and that he kept hitting her until she fell to the floor
unconscious;
(2) to Patrolman Boykin’s statement that in October 1965 at the Beaufort County Fair he had seen defendant standing about twenty-five feet from Joanne, who was lying
unconscious
on the ground, her blouse torn and her body saturated with water from the waist down; and (3) to Mrs. Woolard’s statement that defendant appeared
nervous, like he was emotionally upset,
when he brought
his child to her home on the morning of the homicide. All this evidence was competent. The rule is stated in
State v. Leak,
“The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a
“A witness may say that a man appeared intoxicated or angry or pleased. In one sense the statement is a conclusion or opinion of the witness, but in a legal sense, and within the meaning of the phrase, ‘matter of fact/ as used in the law of evidence, it is not opinion, but is one of the class of things above mentioned, which are better regarded as matters of fact. The appearance of a man, his actions, his expression, his conversation — a series of things — go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact, as if he testified, from evidence presented to his eyes, to the color of a person’s hair, or any other physical fact of like nature. . . .”
Accord, State v. Brown,
Assignments of error 3 and 4 relate to Mrs. Woolard’s testimony that on the night of 23 December 1967 she went to defendant’s trailer and found her daughter, Joanne, in bed, her face and arms swollen and bruised; that defendant told her it was none of her g - - d-business and she didn’t have any g - - d-business being there; that she was nothing and Joanne was nothing; and that she should get out of the g - - d-trailer. Defendant contends that these statements, made “on another occasion,” were unrelated to the case and prejudicial to him. This contention will not withstand scrutiny. The statements (according to the State’s evidence) were made by defendant to his mother-in-law, who had come to the trailer to see about her daughter shortly after defendant had beaten her. The statements were not unrelated utterances evidencing only defendant’s ill will toward his mother-in-law. On the contrary they were directly related to defendant’s abuse of his wife. In a prosecution for homicide “[e]vidence of previous difficulties between the accused and a third person is admissible where properly connected with the victim and offense. . . . [E]vidence of prior difficulties between accused and a third person is admissible to show malice, premeditation, or general state of mind, as is evidence of accused’s ill will toward a member of the family, of deceased. . . .” 40 C. J. S. Homicide § 209 (1944) (Emphasis added.)
Assignments of error 10, 11, and 23-27 are based upon exceptions to the admission of properly identified photographs showing the body of the deceased and its location in the trailer. These photographs were offered and admitted to illustrate the testimony of the witnesses who saw the body before it was moved. At the time of the introduction of the pictures, and again in his charge, the judge carefully instructed the jury that the photographs were not substantive evidence, that they had been admitted solely for the purpose of illustrating the testimony. The competency of these photographs for that purpose is well established.
State v. Hill,
Defendant argues strenuously that he is entitled to a new trial because the court failed to declare a mistrial on account of “the situation that occurred” during the direct examination of Mr. and Mrs. Clarence Bullock, witnesses for the State. This “situation” is the subject of assignments of error 31-35. The circumstances which created it were as follows:
When Bullock was asked if he had ever had a conversation with defendant with reference to what defendant would do if his wife ever left him, Bullock replied,
For the fourth time Judge Fountain instructed the jury to disregard the witness’ answer. He then told Bullock that disciplinary action would be required if he persisted in violating the court’s ruling. Judge Fountain also informed the solicitor that, “if it happened again,” he would require Bullock to leave the stand. Thereupon the solicitor asked Bullock if he could leave out the first part of any statement which defendant had made to him and report only what defendant said concerning his wife. The reply was, “I don’t know how to explain it Sir.” The matter was not pursued further with Bullock.
As the State’s next and last witness, Mrs. Clarence Bullock, who had not been in the courtroom when her husband was testifying, was called to the stand. She testified that a day or two before Mrs. Moore’s death she and her husband had had a conversation with defendant about his wife. Asked to repeat the conversation, she — as her husband had done — began with the statement, “He said that he had killed one person . . .” The judge himself interrupted her and instructed the jury to disregard the statement completely and not to consider it for any purpose whatsoever. When the solicitor asked her if she could omit everything defendant had said about what he had done to anybody else and confine her testimony to what he had said about his wife, Mrs. Bullock’s reply was, “I just know only what he said. I don’t know how to put it unless I say it.” She was not examined further.
In support of his contention that the prejudicial effect of the Bullocks’ repetitive statement was not subject to correction, counsel for defendant cite
State v. Aycoth,
Material differences distinguish this case from Aycoth’s. In the latter, the unresponsive statement was that the defendant had been
indicted
for murder. Here the statement was only that defendant had “killed one person.” Was the killing accidental, in self-defense, or felonious? The statement contained no suggestion that the homicide was the result of a criminal act or that defendant had been prosecuted for it. Furthermore, no
subsequent events
tended to emphasize this inconclusive testimony that defendant “had killed one man.” We do not, therefore, deem this evidence so inherently prejudicial that its initial impact — whatever it was — could not have been erased by the judge’s prompt and emphatic instructions that the jury should not consider the testimony for any purpose whatsoever. As Devin, J. (later C.J.), said in
State v. Ray,
At his trial defendant was represented by competent counsel of his own choosing. They evidently thought that any prejudice to defendant from the Bullocks’ statement had been removed by the action of the judge in striking their unsolicited statements and by his instructions to the jury to disregard them. Unlike defense counsel in
Aycoth,
defendant’s attorneys made no motion for a mistrial. Defendant elected to proceed with the trial and to take his chances with the jury then impaneled. Under the circumstances here disclosed he may not successfully contend that the court, of its own
motion, should have declared a mistrial.
Allen v. Garibaldi,
A careful examination of the record and of all defendant’s assignments of error, including those to the charge, discloses no reason to disturb the verdict. In the trial we find
No error.