State v. . Puckett
189 S.E. 183
N.C.
1937
Check Treatment
ClaRksoN, J.

First contention of defendant: After the verdict the defendant made a motion in the court below “that the judgment be arrested for the reason that the bill of indictment upon which the defendant was tried, is indefinite and uncertain, in the alternative, containing two theories upon which the State was to move, thereby depriving the defendant of his right to know upon which theory the State was moving and to prepare his defense accordingly, the motion in arrest of judgment being made because the bill charges the defendant killed Roy Rhyne ‘with premeditation and deliberation, and with malice aforethought, 07-while engaged in the perpetration or in the attempt to perpetrate a robbery.’ ” The motion was denied by the court below, and in this we can see no error.

N. C. Code, 1935 (Michie), sec. 4200, is as follows: “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other hind of ivillful, deliberate, and pre *73 meditated hilling, or which shall he committed in- the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment for not less than two nor more than thirty years in the State’s Prison.” (Italics ours.)

Section 4614 is an abbreviated form for a bill of indictment for murder, and the first part of the present bill of indictment is drawn in the very language of the statute. The second part, commencing with “or” was drawn to cover the other aspect of the crime under sec. 4200, supra. Under a conviction on either, it was murder in the first degree. The defendant was given full information of the crime on which he was being tried. There was nothing indefinite or uncertain about the bill of indictment. It was in the alternative, but this was merely two counts in one bill of indictment.

Section 4642 is as follows: “Nothing contained in the statute law dividing murder into degrees shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.” The defendant, under sec. 4613, could have made a motion for a bill of particulars. Bills of indictment not quashed for informality, sec. 4623; nor after verdict for defects which do not vitiate, C. S., 4625.

In S. v. Leeper, 146 N. C., 655 (659), citing authorities, we find: “If, however, failure £to erect’ were one offense, and failure ‘to repair’ were another, being cognate offenses, the remedy was not to quash, but to require the solicitor to elect at the close of the evidence.” The indictment followed the words of the statute creating the crime, and also on the first aspect followed the abbreviated form of bills of indictment for murder.

In S. v. Wilson, 121 N. C., 650 (655), it is said: “Besides, duplicity is ground only for a motion to quash. Being cured by the verdict, it cannot be used as ground for a motion in arrest of judgment. Whar. Cr. P. L. and Pr., secs. 255, 760.” 16 C. J., p. 1258, sec. 2791.

On both aspects in the bill of indictment, the court below charged the law applicable to the facts.

Second contention of defendant: Lee Morse testified that the day before the homicide, Roy Rhyne, the deceased, had some $800.00 or $900.00, and described the kind of money it was. Mrs. Rhyne testified that the night before the homicide, defendant had $750.00 “in a pocketbook fold around.” The defendant excepted and assigned error, which we cannot sustain.

*74 The charge on which defendant was tried was twofold: (1) The killing with premeditation and deliberation; (2) in the perpetration or attempt to perpetrate robbery. From the evidence in the record there was no doubt that defendant killed Roy Rhyne, and the jury so found. As to his identity there could be no question. Sultan Penny, who worked at the Blue Moon Filling Station, testified that after the homicide, later in the evening, “He (Puckett) come in the station .and started counting out his money, and said, ‘Well, I got plenty of damn money to gamble with.’ I counted $720.00. There were 40 one-dollar bills, a bunch of fives and tens, and five or six twenty-dollar bills, which he had in three different pockets. The large bills in one pocket, the fives and tens in a side pocket, and the one-dollar bills in his coat pocket.” The evidence beyond question was competent — the weight and credibility was for the jury to determine.

In S. v. Atwood, 176 N. C., 704 (705-6), it is said: “The first three assignments of error are to the admission of testimony that about a week before the homicide the deceased had $65.00 or $70.00 on his person; that on the afternoon of the homicide he was seen with a roll of greenbacks, and that he was paid $3.50 that afternoon. The sheriff testified that only $2.00 or $3.00 was taken out of the deceased’s pockets at the undertaker’s. There was evidence that, the evening before, the prisoner had $180.00 on his person, and that when arrested he had $246.00. This evidence was competent upon the State’s theory, upon the indictment for murder in the first degree, that robbery was the motive of the homicide.”

There are several exceptions and assignments of error as to the charge, none of which can be sustained, taking the charge as a whole. The court below, in a careful charge, applied the law applicable to the facts. The court defined the words “deliberation” and “premeditation”; defined murder in the first degree, murder in the second degree, and manslaughter.

Third: The court below charged: “It would be your duty to convict Puckett of first degree murder even if one of the others actually fired the shot that killed, if it was done after they agreed and conspired to commit the offense of robbery and while attempting to rob and in the perpetration of robbery death ensued to the deceased, Roy Rhyne, while carrying out and putting into execution their unlawful agreement, whether Puckett did the killing or whether the man Paul did the killing, or the man referred to as Swain did the killing, makes no difference, it would be murder, gentlemen, in the first degree. And if the State has satisfied you beyond a reasonable doubt of these facts, it would be your duty to return a verdict of guilty of murder in the first degree.” Prior to the above portions of the charge, the court used the words “at the time they went to the filling station of Rhyne that they had a con *75 spiracy between themselves of doing an unlawful act of robbery,” etc. “The court charges you, gentlemen, that if Mr. Puckett had conspired and agreed with Mr. Cox, or with the man Paul referred to as 'Paul,’ or the man Swain referred to by Morse as 'Swain,’ and they went to the filling station to carry out the unlawful purpose of robbery, and to perpetrate robbery, and while in the attempt to perpetrate robbery, he put into execution the unlawful conspiracy and agreement, that the man referred to as 'Paul’ or the man referred to as 'Swain,’ or any of the coconspirators who may have been with him, if while in the act of perpetrating a robbery or in the attempt to perpetrate a robbery,” etc. The defendant excepted and assigned error and contends that the court below should have defined “conspiracy,” “coconspirators,” etc. The words were used synonymous with “agreed” and “agreement.” This was simple language and the meaning readily understood. A similar charge was held free from error in S. v. Donnell, 202 N. C., 782 (784).

In Moss v. Brown, 199 N. C., 189 (192), we find: '"In Bank v. Rochamora, 193 N. C., at p. 8, quoting numerous authorities, the law is thus stated: “Where the instruction is proper so far as it goes, a party desiring a more specific instruction must request it.” This applies to subordinate elaboration, but not substantive material and essential features of the charge. C. S., 564.’ McCall v. Lumber Co., 196 N. C., at p. 602.”

In the present case, if defendant desired fuller or more elaborate definitions, he should have asked for them by proper prayers for instruction, and not waited until the verdict went against him. S. v. Graham, 194 N. C., 459 (467) ; Sherrill v. Hood, Comr. of Banks, 208 N. C., 472 (477).

The law is so plain as to the other matters in defendant’s brief, and in fact as to all the matters complained of, that we do' not think it necessary to consider same further. The defendant did not introduce any evidence; all the evidence of the State showed a horrible murder with premeditation and deliberation, and also to rob. In the record we find

No error.