State v. Rhodes
113 S.E.2d 917
N.C.
1960
Check Treatment
*440 WiNborne, C. J.

Before taking up the assignments of error in the order set forth in the record on this appeal, we find that exceptions ten, elеven and twelve, in part the basis for assignment of error number “1”, as well as exceptions sixteen and seventeen, basis for assignment of error number “4”, and exceptions twenty-six and twenty-seven in part basis for assignment of error “8”, are expressly abandoned by defendant as set forth in brief filed here.

And when challenged by assignments of error 6 and 7, based upon exceptions 19 and 20 to denial of defendаnt’s motions for judgment as of nonsuit, the Court is of opinion that the evidence offered in the instant case, taken in the light most favorablе to the State, and giving to it the benefit of reasonable inferences of fact arising thereon, as is done in such cases, is substantiаlly sufficient to take the case to the jury and to support the verdict of guilty of manslaughter returned by the jury.

In passing upon the legal sufficiency of the evidence so taken, when the State relies upon circumstantial evidence for a conviction of а criminal offense, as in the present case, the rule is that the facts established or advanced on the hearing must be of such а nature and so connected or related as to point unerringly to the defendant’s guilt and to exclude any other reasonаble hypothesis. S. v. Stiwinter, 211 N.C. 278, 189 S.E. 868; S. v. Harvey, 228 N.C. 62, 44 S.E. 2d 472; S. v. Coffey, 228 N.C. 119, 44 S.E. 2d 886; S. v. Minton, 228 N.C. 518, 46 S.E. 2d 296; S. v. Frye, 229 N.C. 581, 50 S.E. 2d 895; S. v. Fulk, 232 N.C. 118, 59 S.E. 2d 617; S. v. Hendrick, 232 N.C. 447, 61 S.E. 2d 349; S. v. Webb, 233 N.C. 382, 64 S.E. 2d 268; S. v. Jarrell, 233 N.C. 741, 65 S.E. 2d 304; S. v. Roman, 235 N.C. 627, 70 S.E. 2d 857.

While the probative weight of legally sufficient proof is for ‍​‌​​‌‌‌​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​​‌‌​​​‌‌​‌​​​​‌​​​‍the jury, the sufficiency of proof in law is for the court. S. v. Prince, 182 N.C. 788, 108 S.E. 330. So in considering a motion for judgment of nonsuit under G.S. 15-173, the general rule, as stated in S. v. Johnson, 199 N.C. 429, 154 S.E. 730, and in numerous other cases before this Court, is that “if there bе any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury,” approved in S. v. Stephens, 244 N.C. 380, 93 S.E. 2d 431.

As to assignment of error 1, the record points out that “his Honor permitted the State to call Dr. B. B. Andrews for еxamination as a witness for the State before showing that Dr. Andrews had been called or ordered to make the autopsy, concerning which he testified, by order of the solicitor, coroner, coroner’s jury, or any other lawful *441 agency of the State, or that the same was done by permission of the persons entitled by law to give permission for the performance of autopsiеs, and that his Honpr allowed said witness, Dr. B. B. Andrews, to testify relative ‍​‌​​‌‌‌​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​​‌‌​​​‌‌​‌​​​​‌​​​‍to his findings brought about by the performance of said autopsy.” And it is said that this constitutes the basis of defendant’s exceptions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12. R. pp 4, 6, 7, 8, 9, 10 and 11.

In respect to this assignment, first and foremost, the record discloses thаt the doctor is a duly practicing licensed physician and surgeon,— specializing in the field of medicine known as pathology, directing a laboratory in the hospital in which he now is, among other things, performing autopsies for the purpose of determining cаuse of death, and held by the court to be an expert witness. And it is seen that on 18 February 1959, the doctor performed an autopsy оn the body of Ruth English Rhodes at Mark’s Funeral Home in Rocking-ham, and that from his findings, as he described them “on and about the body of the deceased”, he gave it as his opinion, satisfactory to himself, that “her death was caused by pulmonary congestion and edema due to subdural hemorrhage of the brain due to trauma,” that is, “the laceration and bruises on the face and head.” See S. v. Bright, 237 N.C. 475, 75 S.E. 2d 407; S. v. Mays, 225 N.C. 486, 35 S.E. 2d 494; Strong’s N. C. Index Vol. 1, p. 724.

And it is not contеnded that there was mistake of identity, that is, that the autopsy was performed on body of other than that of defendant's wife. The doсtor was testifying from facts found upon his examination. Such testimony is competent for an expert. Indeed, in the absence of evidence to the contrary it will be assumed that the autopsy was lawfully performed.

These exceptions, as contended by the Attorney General, are without foundation and involve a collateral issue as to the source from which the evidence was obtained. See S. v. McGee, 214 N.C. 184, 198 S.E. 616, where the Court had this to say: “Under the common law, with few exceptions, such as involuntary confessions, evidenсe otherwise competent is admissible irrespective of the manner in which it was obtained ‍​‌​​‌‌‌​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​​‌‌​​​‌‌​‌​​​​‌​​​‍by the witness. The courts look to the сompetency of the evidence, not to the manner in which it was acquired. This rule has long been followed in the courts of North Carolina,” citing cases.

Finally let it be noted that this assignment of error presents more than a single question of law for consideration by this Court, and is violative of elementary procedure. See S. v. Atkins, 242 N.C. 294, 87 S.E. 2d 507, citing cases.

As to assignment of error 2, based upon exceptions 13 and 14: These *442 exceptions challenge the voluntariness of the statement made by defendant to officers. However the record fаils to show that the statements were not voluntary. And the Court, in the absence of the jury, considered evidence offered and detеrmined the voluntariness of the incriminating statements. See S. v. Mays, supra, S. v. Rogers, 233 N. C. 390, 64 S.E. 2d 572.

As to assignment of error 3, based upon exception 15: This is to trial court allowing “the introduction of certain ‍​‌​​‌‌‌​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​​‌‌​​​‌‌​‌​​​​‌​​​‍bed clothing, personal clothing, and other items as State’s Exhibit No. 1.” In this there is no error. See S. v. Vann, 162 N.C. 534, 77 S.E. 295.

As to assignmеnt of error 4, based upon Exceptions 16 and 17: The record fails to show what the witness would have said in answer to the questions asked. Hence there is no error. See S. v. Poolos, 241 N.C. 382, 85 S.E. 2d 342, and many others.

Assignment of error 8: The record expressly indicates that “this constitutes the basis” of defendant’s exceptions 21 through 28. And these constitute a broadside attack on the charge, and are of no avail. S. v. Atkins, supra.

Assignments of error 9 and 10, based upon defendant’s exceptions 29 to 39, both inclusive: These relate to the order in which the court stated the contentions of the State and defendant. This is a matter in the discretion of the court, and is not ordinarily subject to attack. If, however, there be оbjection to statement of a contention it is the duty of the party objecting to call the matter to attention of the court at the time, so that the court may have opportunity to correct the statement if need be. Hence no error is made to appear.

Assignments of error 11, 12 and 13 are directed to formal matters which need no express consideration. ‍​‌​​‌‌‌​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​​‌‌​​​‌‌​‌​​​​‌​​​‍These are matters of discretion, and on the record and case on appeal fail to show error.

After careful consideration of the record and case on appeal, as a'whole, prejudicial error is not made to appear. Hence in the judgment below there is

No error.