*1 IN THE SUPREME COURT. v. Peeee. State no taking during trial, shows Ruth was notes that Mrs. Griffin appellants’ rights, and, further, prejudicial error to an judge inquiry make such of request defendants’ counsel assignment of error is overruled. late after This came too verdict. assignments carefully appellants’ has examined all The court brought forward in their brief and discussed which have been error appear authority, and no error is made to with citation as- disturbing judgments the verdicts below. All warrant would appellants error of signments of overruled. below find
In the trial we error.
No
STATE OF NORTH CAROLINA v. OTIS EUGENE PEELE.
(Filed 1968.) 14 June Law 1. Constitutional 30— §§ right plead guilty prosecu- The Fifth in a Amendment not criminal jury ap- and the Sixth trial tion Amendment demand a are made plicable process to State due trials clause of the Fourteenth Amendment. 24; Same; Rap© Jury 2. Criminal Law 1— § § § rape setting jury G.S. death unless at imprisonment, 15-162.1, permitting life and G.S. recommends a defendant represented by plea guilty counsel to tender who a written rape which, accepted by charge approved by court, guilty of a has the effect with a recommendation of life place together impermissible do not burden on the charged plead guilty a defendant and to demand jury any prevent being imposed as to trial so from rape. crime of for the circumstances 3. Same— rights by guilty prosecution defendant’s and to In a 'penalty, deterred a fear trial were demand guilty, by pleading plea escape defendant where entered a which he could found him tried of not with a recommendation Arrest and Ball 3— § 4. 10-year-old alleged rape victim saw of a compromising defendant Where mother position, bloody observed victim’s and the victim officers, immediately, police who arrived and the condition and called story, ap- observed the victim’s condition and heard mother’s officers leaving scene, possessed prehended ample in the act officers the arrest of without a evidence authorize warrant. 15-41. Peetjs. *2 42, 5. Criminal Law 84— §§ Clothing person taken officers from the an incident defendant as gained by seizure, to a lawful arrest is not unlawful search clothing testimony analysis of the results of a of blood- chemical properly stains found thereon are admitted into evidence. Jury e. 7—§ prosecution challenge. In a is for entitled to cause prospective jurors religious who state under oath that have moral and scruples against capital punishment impossible which would make it them to return a verdict of without a recommendation though proved of life even of defendant beyond a reasonable doubt. 7. Same— challenge any jurors Where defendant did not for cause or otherwise on panel peremptory challenges, the objection him and did tried exhaust properly appeal. to the is not raised on n S. Criminal Law 165— §§ Objection portions argument of the State’s to the should be made before case is submitted to the 9. Criminal Law 102—§ conducting argument counsel, language The manner of em- ployed, temper largely and the of and tone allowed must be left dis- presiding judge. cretion 10. Criminal Law 166—§ Assignments brought forward the brief and error not no- cited will be reason or deemed Supmere No. 28. Rule of Practice abandoned.
Bobbitt, X, concurring in result
Sharp, J., joins concurring opinion. Appeal Exum, J., defendant from December 1967 Criminal Session, High Superior Court, Point Division. GuilfoRD Peele, Eugene prosecution defendant, this criminal Otis arraignment, plead charge rape- capital a —-a indictment, Jury felony. The drawn Grand under G.S. charging defendant, unlaw- named June . . fully, wilfully, and feloniously carnally know, rape, did and abuse Cherly age one Ann Ollis, years female child of twelve (10) years age. . to wit: ten .” pleading Before indictment, quash defendant moved to upon grounds: (1) allegations these in- indictment were charge (2) sufficient to the crime of 14-21; under G.S. All the (3) Jury evidence before the was incompetent Grand as hearsay; North 14-21 and General Statutes when Carolina con- IN COURT. THE SUPREME v. Peeue. unduly Amendment discourage of the Fifth together,
strued assertion Amend- exercise the Sixth guilty, and deter the motion overruled the ment to demand trial. The Court assigned 4 is as Error No. quash. Exception The defendant’s No. lodged the in- preliminary suppress The defendant motion clothing, containing worn bloodstains, troduction in evidence of dire, at the time of his After voir examination arrest. suppress witnesses, the Court denied the motion to and ruled (No. exception 26), admissible. The defendant evidence took subject Assignment of Error No. 2. is the examining the one at parties jury by selected veniremen challenged twenty time. The record discloses that veniremen were had he was State, opposed cap- *3 for cause the after each stated challenges how- punishment. allowed, ital Before for cause were the ever, jurors the under oath had either prospective religious scruples against punishment and that on capital moral religious impossible scruples account of their moral and it would be charged a in for them verdict of as this case to return though even of life the recommendation the proved beyond reasonable doubt. The the challenges the cause. sustained State’s for The defendant took Court exceptions Assignment inclusive. These form Exceptions 6 his of Error 3.No. juror, questions “A with one alternate after and .of.-twelve challenges defendant, and by^ duly the was
certain selected law impaneled according practice this State in any juror does not The record disclose capital accepted cases.” objection, or that he had defendant’s exhausted his preemptory over jury. the passed time challenges the he at witnesses, victim, mother, the her examined as The State her the doctor who treated the lady door, victim for brother, the next including specialist witnesses, injuries, and other blood serious pants the worn matching. introduced undershorts The State arrest, what.ap- the of the contained at time the defendant The specialist, analysis, after ex- to be fresh bloodstains. peared clothing the stains on defendant’s were made opinion pressed compatible type. victim’s blood blood, human ' and denied assault. as witness He defendant testified apartment alleged where it is in the to have presence admitted his clothing resulted the bloodstains on from testified occurred. He mother. with the victim’s act of intercourse evidence, motion Court overruled defense close of At guilty. of not Neither brief nor directed for . v. argument oral sufficiency does the defendant evidence .to make out a case for the Guilty finding returned its “. verdict, Rape in the bill of recommenda- indictment, with the
tion that his be life Prison. State’s .” The imposed From mandatory life sentence. judgment verdict and thereon, as defendant- returned appealed. Bruton,
T. W. Attorney General; Rich, Jr., Assistant Millard B. Attorney General, the State. Gardner by Jerry & Wilson Wilson defendant.
HiggiNS, J. the indict- appeal On this the defendant contends fatally ment is defective and the Court’s failure so to declare subject dismiss the Assignment case is the of Error No. 1. He further contends, is held commit- valid, indictment the Court entitling (a) overruling ted errors him to a new mo- By trial: suppress garments tion to the introduction the bloodstained worn (Assignments the defendant at No. the time of his arrest of Error (b) By 2); sustaining challenges the State’s for cause of veniremen scruples against capital punishment on account of conscientious (Assignment (c) 3); By of Error No. solicitor’s reason of the unjustly prejudicial jury (Assignment of Error ' 4)A No. was drawn under provides: The indictment *4 “Every person knowing who is convicted ravishing carnally and age any years against female the of twelve by or more force and carnally who is convicted of will, unlawfully knowing her or and and abusing any age female child under the of twelve shall suffer years, Provided, jury if the shall so death: recommend at the time ren- dering open court, punishment its verdict in the imprison- shall be life in the prison, ment for State’s the court shall the so instruct jury.”
Objections ground charge to the indictment it does not incompetent the crime of or that it was returned on evidence They were abandoned. are not discussed in the brief. his motion entirely upon the defendant relies his quash contention that G.S. when place 14-21 and G.S. construed an together, imper- right upon plead guilty missible burden his to demand punishment The statute jury trial. former fixes for rape at death jury unless the recommends life The latter statute defendant, represented by if permits counsel, to tender a written plea accepted plea State, COURT. IN THE SUPREME have acceptance shall Court, the tender approval may jury recommendation verdict, effect of a with a as he guilty, pleads If the defendant imprisonment for life. jury returns right and the do, has a constitutional be- sentence the death recommending pen- the death argues the fear of mandatory. comes The impermis- may pleading guilty, places an escape by alty, which he question of jury pass on the right to have a sible restraint on his in- did not deter or penalty his or innocence. Fear of guilty and to have forego defendant to duce the he guilty was heard plea trial. His of not passed unobjectionable. quash, motion to support
As Jackson, decided Court of cites United States April 1968, reported Week, page 36 Law United States on District of the United States was indicted Court Jackson (18 Kidnapping 1201(a)), pro- Act under the Federal U.S.C. transports knowingly interstate . . . com- vides: “Whoever . unlawfully kidnapped been . . . merce, any person who has otherwise, punished or . shall be and held for ransom ... person (1) kidnapped if the has not been liberated un- by death recommend, (2) and if the shall so harmed, any years life, or for if the death im- penalty term of is not upon ground indictment quash the moved to posed.” Jackson kidnapping statute makes “the provision of the risk penalty death asserting thereby trial and price for of death the right.” granted of that the mo- the free exercise impairs kidnapping count in dismissed the the indictment. quash and tion to Supreme Court held the death appeal penalty pro- direct On imposes an Kidnapping impermissible Act the Federal vision of rights constitutional the exercise of under the Fifth upon burden Nevertheless, the Court Amendments. remanded the case and Sixth death disposition, penalty. minus the Court said: for trial clause of Federal holding Kidnapping Act “By operative the statute unenforceable, whole, we leave free of objection.” The Court reversed the District Court’s constitutional quashing the indictment and returned the cause to the District order Court for trial. penalty provision
The Jackson case holds the death of the kid- *5 light provisions, in the other violates fundamental napping act, rights guaranteed by the Fifth and Sixth Amendments to the Con- by argues, stitution of the United States. The Peele analogy, penalty provision light the death of G.S. Ill
State
guaranteed
15-162.1,
rights
G.S.
fundamental
violates his
process
due
clause
the Fourteenth Amendment.
Duncan
Louisiana,
(May 20,
We think there are certain material in Federal differences Kidnapping Act in 15-162.1, and North Carolina Statutes 14-21 and that holding penalty Jackson is not in the death may North imposed Carolina not be under circumstances for of rape. kidnapping imprisonment the crime In the act the law fixes in provides but penitentiary, jury may impose that the the death penalty. The North provides Carolina statute that penalty shall be ordered unless the at the its time it renders part verdict of guilty, punishment as thereof fixes the at im- life prisonment. True, provides G.S. 15-162.1 if represented by may
with counsel, plea guilty tender a which, accepted approval with State Court, shall of a verdict have the effect the jury with a recommend- imprisonment. punishment acting ation the be life State, through solicitor, may accept refuse to plea, judge may its or the decline event, it. In either approve there must be a trial, although dispute. Except provided in the facts serious G.S. practice permit North Carolina will not defendant to capital felony. 15-187 provides death sen- against any person shall be executed tence punishable by aof crime death. North Carolina convicted .” added.) (Emphasis primarily the benefit of a pro-
G.S. 15-162.1 defendant. Its may only application. his written provides be invoked visions It rigid defendant, under and the court supervision, may, agree trial, ordeal of a on a without the result which will vindicate the defendant’s life. As case, law and save Jackson greatly prefer who would are “defendants not to there contest their only in experience Practical indicates extreme guilt.” cases does the fail to recommend life than the rather death possibility penalty, deterring of a death penalty. however, has much, This, however, no one knows. may say effect-—-how we certainty provision for, of, fear the did —-the rights deter exercise the Fourteenth plea guilty. Amendment. He entered He submitted his case As a part guilty, of the verdict of fixed the at *6 112 IN COURT. THE SUPREME v. Peeee.
State of good. However, part The indictment was held Jackson held penalty was the.-kidnapping provided act which for the death to impose impermissible to restraint on the defendant’s pass and to on the have guilt under It a conviction certain, therefore, or innocence. seems years for kidnapping sentence, act will for or support prison Likewise, conviction, jury’s life. recommendation against support under will imprisonment, the indictment Peele to Judge Exum, the motion case, life sentence. this overruled good. Assignment quash correctly held the indictment of Error 1 is sustained. Ño. a compromising the victim in
The mother saw defendant and The mother ob- position on couch. The defendant left the room. bloody ar- officers, the victim’s condition and called the who served immediately. story, The officers heard mother’s observed rived condition, ap- in view what heard, saw the victim’s leaving in the act scene. took prehended They police headquarters there obtained and a war- served him rant: ample had evidence to The officers authorize the arrest of 15-41; a warrant. G.S. State v. N.C. Egerton, 264 515; Brown, State v. 264 N.C. 141 311. 328, 141 S.E. 2d S.E. 2d arrest, the officers took the defendant’s bloodstained Incident held as evidence. clothing analysis to be Chemical disclosed clothing were made human type on blood of the stains same garments blood. The were victim’s admissible in evidence. as the 645; 249 N.C. 105 S.E. 2d Bass, v. State v. 205 Wall, State “It is not an 172 216. unlawful search S.E. or seizure N.C. person take from arrest and to examine an officers Jur., him. 47 worn Am. Searches and clothing See: article 2d, Arrest, Arrest, C.J.S., Sec. 6 53; 5 Am. Jur. Seizures, Sec. nothing appearing, evidence, else admit error, in' It is not Sec. condition or testimony as contents of such objection, over examination or to admit in evidence such garments discovered Boss, N.C. 739. The denial State 269 garment itself.” Assignment was not error. The defendant’s suppress motion sustained. No. is not Error allowing contends the Court committed error in challenge for cause certain the veniremen religious scruples against
ground they
capital punish-
moral
had
or
allowing
challenge,
prospective juror
each
However, before
ment.
each
“.
these
questioned,
further
account of
(sic)
scruples
impossible
religious
it would be
for them
moral
charged in this
recom-
case without a
return
TERM, 1968.
Peeee.
proved
though the
mendation of life
even
de-
our
doubt.” Under
beyond
of the defendant
a reasonable
challenge
sustain the
expressed
views
were sufficient to
cisions, the
*7
(reversed
2d 173
Bumpers,
521,
for cause. State v.
270 N.C.
155 S.E.
grounds);
v.
Supreme
on other
by the United States
Court
cites, contra,
Childs,
307, 152
2d
The defendant
269 N.C.
S.E.
involving a death
Bounds, a Fourth
decision
v.
Circuit
Crawford
sentence.
jury.
fair
unbiased
Each
party to a
is entitled to a
Each
trial
A
against him.
challenge
juror
prejudiced
a
who is
may
for cause
to
favor,
in his
but
right
juror prejudiced
select a
party’s
not to
155
against
Spence,
23,
State v.
271 N.C.
reject
prejudiced
one
him.
both
passed
acceptable by
was
case,
jury
2d 802. In this
a
S.E.
challenge for
did not
and the defendant. The defendant
juror on
that tried
The record
panel
cause or
him.
otherwise
to
challenges. Objection
preemptory
show he exhausted his
does not
apt
appointed
in
time
in
was not raised
or
jury
Anderson,
720,
1;
Koritz,
N.C.
47 S.E. 2d
State v.
way”. State v.
228
77;
Kirksey,
State v.
227
42 S.E.
552,
445,
43 S.E. 2d
N.C.
227 N.C.
Brogden, 111
ac-
2d
State v.
N.C.
to States (Case No. 1016), North Carolina decided on June 1968. Be ers v. question: in that case was this petitioner’s “Was the fore Court impartial jury capital an case to violated this ‘constitutional permitted challenge prosecution pros cause all when foR opposed capital punishment were jurors who stated pective against scruples imposing penalty.’ the death ”. conscientious or had illegal (A pertinent involved an search and is not second held, pertinent question: The on the inquiry.) present Witherspoon Illinois, today, v. decided a “In we have held that constitutionally imposed cannot be sentence executed which have been removed for jury who, from cause those capital punishment opposed con- more, have against imposing scruples penalty. de- Our scientious govern present Witherspoon does case, cision because jury recommended sentence of life here - however, jury qualified that a argues, under such petitioner necessarily be biased must as well with standards and that his conviction guilt, must accordingly defendant’s denial because of the reversed under the Sixth IN THE SUPREME COURT. v. impartial to trial Duncan Amendments Fourteenth Louisiana, 145; Turner v. U.S. 391 U.S. Louisiana, ac- cannot 717, 722-723. We Dowd, 366 U.S. 471-473; Irvin petitioner adduced present case. The cept that contention selected as this claim that support the no evidence to materials re- necessarily ‘prosecution prone,’ one was is brought more substantial than those in his brief are no ferred to re- Witherspoon. Accordingly, we decline to our attention upon this basis.” conviction judgment of verse the is not sustained. Error No. 3 Assignment of objection the defendant’s to the We have examined Assistant The defendant did Solicitor. made judge argu request stop objection. He did interpose ap objection not to instruct or to ment consider.it. *8 appeal. ex in the case on He should have first time for the pears a mistrial before the case went to the and moved cepted complaint. well verdict to make until after “It is than wait rather exception must be entered at the time.” York v. that settled Strong’s Index, Ed., N. C. 2d Vol. 695, 212 194 S.E. York, N.C. 33, p. Although Error, Sec. 170. we have serious doubt Appeal and 1, properly presented; neverthe argument is objection to whether argument set in the part out reviewed we have less, legitimate jury within the bounds of is well it and conclude record argument conducting counsel, manner of “The debate. largely temper allowed, and tone must be left language employed, judge. sees what presiding done, He is the discretion cognizant surrounding circum is of all the is said. He what hears ought latitude that to be allowed judge of the and is better stances, any particular case.” State argument of v. Bare counsel in the 424, quoting from State Bryan, 2d 89 foot, 650, 241 86 S.E. N.C. Error No. 4 is not sustained. Assignment of 531. N.C. the defendant has taken a number of ex- appeal,
In the case assignments They of error thereon. are set ceptions and has made in the were dis- but are not discussed brief and record, out in the argument. authority Neither reason nor is cited cussed the oral appellant’s in the brief support. “Assignments of error not set out stated, which no reason or is Ap- Strong’s Index, Ed., will abandoned.” N. C. 2d cited, be deemed peal Error, 45, p. 188; 28, Rule Rules' of Practice Sec. 24. Court; Siskin, 119, 150 S.E. 2d Mathis v. 268 N.C. 115 GRAHAM V. INSURANCE Co. gravity
Because of the examined them case, however, we have and find them to be without merit. trial, we find
No error. J., concurring in result. The differences between the Bobbitt, Kidnapping Federal Act, 18 1201(a), U.S.C. considered United § States v. Jackson, Ed. U.S. L. 2d 88 S. Ct. the North Carolina statutes codified as 14-21 and G.S. accurately
are set clearly opinion. forth in the Court’s pleaded guilty. This defendant After by jury, trial ver- dict was as with the recommendation de- imprisonment fendant’s judg- for life. Accordingly, a pronounced. ment appeal present
This does not for decision whether United States Jackson, supra, present invalidates the death North very statutes. I would reserve decision of this important Carolina expression question and withhold of views with reference thereto directly presented explored until the and further and con- approval expressions I Hence, sidered. withhold in the Court’s relating question. opinion to this stated, I concur in
Except opinion the Court’s and in the re- sult. joins opinion. J., this
Shaep, *9 JOHN H. GRAHAM v. RESERVE LIFE INSURANCE COMPANY.
(Filed 1968.) 14 June 1. Insurance 43.1—§ hospital expense agrees pay “expense policy A in which insurer actually contemplates expenses incurred” for which the insured has be- legally come liable. Recovery hospital expense policy 44— Insurance allowed § hospital. tuberculosis treatment in State paying patient Plaintiff was admitted as a of tuberculosis treatment charged, at a state and was told he would ex- sanatorium pected pay, per day patients the standard rate of which all $10.00 charged. pa- of sanitorium accounts Collection is made the basis ability pay adopted policy di- tient’s current the board of hospital pursuant requiring patients to statutes re- rectors admit patients ability pay gardless providing who are able must pay for treatment received. G.S. G.S. 131-79. Held: Plaintiff