*1 v. Sandeks and credit pledge or a the faith of the political subdivision thereof payable solely subdivision, such but shall be political or of provided funds therefor.” While some- from the revenues and other is, these of the confusing, the effect of three sections act what net political Authority the is not to be considered sub- least, at determining purpose of the effect and of the State for the division validity of these bonds. totally bonds to deliver plaintiff contracted
The municipal The the State, county and taxation. bonds exempt from subject are, my opinion, to the proposes now to deliver plaintiff to such levied State and other intangible property tax now the upon intangible personal property. may levied lawfully taxes being is not ten- is Since the defendant variance substantial. purchase, should not be compelled it contracted to the bonds dered plaintiff now offers to pay for the bonds it. to receive adjudging court superior view that erred my It is from taxation and that the defendant themselves, exempt are bonds, pay bonds. accept and for these must STATE OF v. PERRY NORTH CAROLINA SANDERS
No. 43
(Filed
1970)
12 June
—
first-degree
135—
murder
bi-
1. Homicide
Law
Criminal
§
§
jury
furcated
trial
first-degree
prosecution
In this State
murder
not en-
jury
guilt
jury determining
to a
with one
titled
bifurcated
trial
fixing
punishment.
innocence and the
other
G.S. 14-17.
Jury
charge
Negroes
2.
7—
of racial
discrimination —'absence
§
Negro
charge
is no
There
merit to a
defendant’s
that members of his
deliberately
petit
him,
were
excluded from the
race
which tried
(1)
jurors
record
where the
were
discloses
nine of
first 53
tendered
(2)
Negroes,
properly
trial court
its
discretion
excluded one
Negro
years old, (3)
Negro
jurors,
jurors
who was
two of the
peremptorily challenged,
(4)
Negroes
remaining
six
were
properly
opposed
excused for cause after each
he was
stated that
capital punishment
penalty.
and would
consider
Jury
proof
7— racial
discrimination
burden
§
proof
establishing
has
Defendant
the burden
racial discrimination
composition
jury.
TERM
v. Sandeks
*2
— presumption
Jury
4.
racial
discrimination
7—§
petit
jury
insufficient,
Negroes
particular
is
from a
The absence of
itself,
presumption
to raise
of discrimination.
and of
a
Jury
representation
proportional
of race
5.
demand
7—§
petit
right
be
his
to demand that
Defendant does not have the
part
persons
composed
or that
there
own race
or in
of
of
whole
his
persons
proportional
representation,
only
not be
of his race
but
that
be
intentionally
of race.
because
excluded
Jury
peremptory
challenge
6.
7—§
challenge.
peremptory
G.S. 9-21.
for a
No cause need be stated
135;
Jury
exclu-
7—
Law
Law
§
7. Constitutional
Criminal
§
§
penalty
jurors
sion of
who would
never
return
first-degree murder,
prosecution
capital
the Consti-
In a
of
for the
crime
Witherspoon
States,
interpreted
Illinois,
tution of the United
as
jurors
by
had
of
who
testified
U.S.
on
is not violated
the exclusion
those
they
already
up
would
had
minds that
voir dire
made
their
might lawfully
pursuant
a
to which
defendant
be
return
verdict
executed,
might
whatever the evidence
be.
—
objection
to
waiver
8. Criminal
Law
162—
evidence
§
opponent
objection
ample
soon
has
time as
as the
Unless
made
opponent
opportunity
objectionable,
will
to learn
evidence is
be held to
waived it.
have
—
first-degree
ad-
9.
Law
Homicide
15—
murder
Criminal
§
§
—
—
by conspirators
identity
gestae
mission
of voices
res
po-
prosecution
first-degree
In
murders of two
a
of defendant for the
shortly
officers,
lice
which murders were committed
after defendant
by
companions
filling
attendant,
testimony
station
several
had robbed
companion
as
and a
left
the station he
the attendant
defendant
say,
him,
down,”
of
him
he’s
and that
heard one
them
“Shoot
while
shoot
“No,
of,”
competent against
said,
the de-
the other
he’s taken care
held
voices,
notwithstanding
identify
to
fendant
the attendant was unable
by
conspirators in
fellow
the course of
since the statements were made
gestae.
robbery
part
res
competency
co-conspirator
Conspiracy
evidence
res
10.
5—
§
-7-
gestae
persons
together
pros-
two of
combine
for the
Where
more
or associate
illegal
purpose,
ecution
some fraudulent or
act or declaration made
object,
forming
part
one of them in furtherance of
common
the.
gestee, may
given
against
of the res
in evidence
the other.
—
admissibility
right
11. Criminal
Law
76—
of confession
waiver of
§
— findings
to counsel
prosecution charging
first-degree
In a
murders
police officers,
police
properly
two
defendant’s confession to a
officer
evidence,
competent
admitted in
where there
on
the voir
support findings by
fully
dire to
trial'
court that defendant
been
Arizona,
rights
advised of his
under Miranda v.
de-
U.S.
and that
IN THE
COURT
SUPREME
v. Sawders
understandingly
freely, voluntarily, and
waived Ms
to coun-
fendant
sel and made his
understanding.
voluntarily
and with
statement
— prior
impeachment
offenses
of defendant
Criminal
Law
86— §
— opportunity
explain
to
conviction
first-degree
prosecution
prejudiced
was not
Defendant
murder
explain
him
on
examination
trial
refusal
to allow
redirect
court’s
previously
examination
he had been
convicted
his admission
cross
female,
defendant on cross
of assault'on a
where the record disclosed that
testimony.
had testified to the substance
the excluded
examination
impeachment
opportunity
Law
86—
of defendant
IS.Criminal
§
correction
opportunity
explain
A defendant
is entitled to full
correct or
impeaching questions.
response
answers in
*3
—
prejudicial
error
new
14. Criminal
Law
167—
trial
§
ruling
trial,
appear
To warrant a new
there should be made to
that the
prejudicial
rights
complained of
and
and
was material
defendant’s
likely
would
different result
have
ensued.
—
police
premeditation
21— murder
of
officers
15. Homicide
§§
— sufficiency
of
and deliberation
evidence
charging
degree
prosecution
with
of
In a
defendant
the first
murders
police officers,
shortly
two
and
which murders were committed
after defendant
companions
filling stations,
had robbed two
his
there
sufficient
premeditation
by
and
evidence of
to
deliberation
defendant
to be submitted
jury,
(1)
officers,
where the evidence disclosed that
the
course
the
the
robberies,
stopped
investigating
de-
of
the automobile
companions
(2)
attempted
riding,
and his
to ar-
fendant
the officers
companions
carrying
pistol, (3)
rest
for
then
one
thinking
shot the
officer because he “was
about what I would have
first
face,”
(4)
cartridges of
the defendant continued to
two
fire
pistols
helpless.
into the officers after
had fallen and were
—
police
presumption
16. Homicide
14— murder
of
officers
of malice
§
prosecution charging
first-degree
of
In a
defendant with the
murders
police officers,
may
presumed
two
be
from evidence which satisfies
malice
jury beyond
proxi-
of
a reasonable doubt that
death
the officers
pistol
mately
intentionally
by
from
resulted
shots
fired
them
at
defendant.
—
premeditation
17.
18—
deliberation
circumstantial
§
Homicide
usually
premeditation
suscep-
of
and deliberation
The elements
are not
proof,
tible to direct
must be established from the
sur-
but
circumstances
rounding the homicide.
premeditation
18. Homicide
4—
defined
§
“thought
length
time,
means
beforehand” for
of
Premeditation
some
however short.
—
premeditation
length
4—-
and deliberation
of time
Homicide
§
processes
required
pre-
for
No fixed amount of time
the mental
v. Sandeks
constituting
in tbe first
to,
meditation and deliberation
of murder
element
degree,
being
processes
prior
and not
sufficient if these mental
occur
simultaneously with,
killing.
— recapitulation
20. Criminal Law
113— instructions
of evidence
§
recapitulation
required
1-180,
of all
is not
the evidence
under G.S.
nothing
required
applies
more is
than a clear instruction which
gives
position
parties
law to the evidence and
taken
as to the
essential features of the case.
21. Homicide
Criminal Law
§
Constitutional
§
Law
29—§
degree
death sentence
murder
effect of Jackson
decision
Notwithstanding
effect,
any,
¶.
Jackson,
if
S. v.
Appeal Fountain, from J., at the 17 November Foesyth. 1969 Criminal Session appeals
The defendant judgments sentencing him to death. charged He was in two indictments with murder in degree the first pleas guilty entered charge. of not to each The two cases were consolidated for trial, and the returned a verdict of guilty as charged in each of the indictments, without recommendation that punishment imprisonment for life. The indictments, verdicts, *4 judgments and proper were all in form. The alleged crimes were to have in Surry occurred County, pursuant but to an order changing venue, the trial Forsyth was held in County. The evidence favorable to the State shows following sequence
of events: p.m. February About 6 on 3 1969 defendant Perry Sanders, his brother Sanders, Laxie Monroe, Charles and James Monroe left Sanford, North Carolina in a Dodge 1967 red belonging convertible to Charles Monroe and headed the direction of Winston-Salem, with the robbing intention of a service station to obtain money to pay respective their debts. p.m. About 10 they upon came a service station airport near the in Winston-Salem. parked Charles Monroe the car on a side street. The other three men went into the station, and upon determining the operator, Harvey King, was alone, Perry pulled Sanders his .22 pistol caliber and demanded money. King After money surrendered his and his wallet, he was ordered into the stockroom and told to lie down on the floor. Perry Sanders King then struck with a set of air horns and he appeared to be un- v. San debs conscious; he was and as soon as however, left, conscious the robbers King reported robbery Forsyth Depart- County Sheriff’s his then companions ment. The defendant and drove north toward they Wesley Rural Hall where found service station Hunsucker’s open p.m. Perry around and went in- 10:25 Sanders James Monroe determining and side, alone, that Hunsucker pistol his witness pulled on the victim. State’s Hunsucker testified Perry up easy Sanders told him to “stand and take he kill his been would After wallet had removed and the cash [him].” get register emptied, Hunsucker was ordered to down on the floor and was struck with bottle one of the robbers. He was then and get into service area of the station told to down on ordered head pistol, Hunsucker on the with his his knees. Monroe struck and crumpled Hunsucker, pretending “play dead,” over some tires. As leaving, and Hunsucker of them say, Monroe heard one Sanders him, down,” said, while he’s and other “No, “Shoot shoot him way out, gauge their took a Ivey he’s taken care of.” On Sanders .32 single-barrel shotgun office of Johnson from the the service station. testimony at According trial, own the following to defendant’s leading up to the the incidents arrest of an account of defendant robbery After charges: of the second service sta- murder on the companions through north his drove Rural defendant and Hall tion, Highway Bypass On the around Pilot Mountain. Pilot toward #52 began city police following car ve- Monroe Mountain, marked patrol his car over when the officers in the car pulled Monroe hicle. Ralph ap- East Glenn light. Officers Branscome the blue flashed side, driver’s one of them car on the asked the Monroe proached license. Then one of his driver’s the officers said Monroe Charles robbery wanted armed to search the car; had heard of got the search and out of the As permit Perry car. agreed to the four pistol his caliber slid .22 under the car. Offi- stepped out, he Sanders pistol James Monroe found a first searched Branscome cer going to arrest him for carry- belt; he told Monroe put started to Branscome the handcuffs on As Officer ing pistol. pistol picked up his from underneath the Monroe, James Defendant “I was thinking testified: fired at Branscome. car . . face, guess. I . have time I what I would about gun up eyes just my I threw the and closed my up. hands threw just *5 just I aim, really. When fired the shot he I fired. didn’t and — up screaming and to draw started and just seemed I he started weapon I to fire the until ... continued firing again. he started point East, standing Officer who was on screaming.” At stopped began running car, patrol back to the Monroe side the driver’s v. Sawdeks running follows: started Defendant testified as car. “[Officer East] and he was caught my eye screaming him out of the corner of and I at him once or twice and he fell up ran to him and I fired and and I my gun I own screaming. ... discovered that he started was my gun kept twice out of and it I think I fired at him click- empty. kicking just screaming and and I snatched his ing and he [pistol] shooting. weapon just him with his up and started I shot because he quit firing stopped I kept up this scream. ... scream- ing.” Defendant and Monroe retrieved Monroe’s Charles driver’s pocket officers, of one of the and the four license the shirt men driving Airy Highway on left, toward Mount and then #52 Highway along toward Winston-Salem. #601 p.m. traveling Pilot About 10:50 motorist toward Mountain headlight car with Highway burning. met a red one A few #52 upon patrol later the came car parked minutes motorist officers’ headlights burning with its on the shoulder of the and road the blúe light flashing. The bodies Officers East and lying Branscome were patrol car; several within feet of the both had received multiple gunshot body. in and wounds the head bodies two officers hospital taken to the where a later examination disclosed that — gunshot in Officer Branscome had seven wounds two the head, one right shoulder, the chest area, three one gunshot arm; Officer East had five wounds one the left shoulder, through one in chest, three the head. Death in n gunshot each case resulted from these wounds. February
Between 12:15 and 12:30 a.m. on 4 1969, Winston- spotted Salem Police A. Brandon a red Officer C. convertible headlight description matched burning, one of an auto- police described in a mobile earlier broadcast alert. The officer be- gan following the convertible radioed for assistance. Police cars converged an intersection, suspected soon at and the car stop- ped. The occupants, Perry Sanders, four Laxie Sanders, Charles Monroe, Monroe, and James were ordered the car, out of and each search, was searched. On a second a .22 pistol caliber was found con- Perry cealed Sanders’ undershorts. A search the car disclosed $1,000 over in various denominations of currency, brown wallet containing the identification of Harvey Woodleaf King, a black containing wallet the identification of Wesley Ronald Hunsucker, pistol. and a 7.54 caliber automatic All four men were taken into custody by police the Winston-Salem -at police arrived sta- shortly tion after 12:30 a.m. Linville,
About 1 a.m. R. Detective E. presence of S.B.I. *6 v. Sanders Di- Agent Hartley Captain and H. Carter of the Detective H. T. C. Department, fully Police advis- vision of the Winston-Salem rights, began questioning of his constitutional him. ing defendant a tape defendant his statement was recorded on permission of With signed by Forsyth and later him in the was transcribed recorder; it February on 4 1969 after he had read it County jail p.m. about 3:30 as one of the names. The which confession, a correction and made by the State’s witness R. E. Linville, introduced in evidence was testimony given by substantially similar to the the defendant was being the number of stand, primary difference times on the In his confession shot the first officer. defendant stated and then chased down Branscome Officer that he first shot Officer him patrol car, behind; and shot was headed East, who pistol and shot him several .38 caliber times then took East’s “ran back and shot the other one it, the head [Branscome] emptying gun.” finished However, until four or five times [he] go he did not back on the stand that testified the defendant had shot East. Branscome after he shoot trial was his own only testimony, evidence at Defendant’s the robberies of the two service stations and the described which he police officers, testimony and the three char- shootings of the two Sergeant Worthy Bragg; Jasper of Fort witnesses, Freeman acter father; Johnson, and Mrs. Harriet ac- the defendant’s Sanders, Worthy Mrs. Johnson testified that de- Sergeant quaintance. good. general reputation fendant’s guilty charged in each indict- a verdict of jury returned imposed murder, and the sentence degree ment of first appealed. judgments court. From these Attorney Morgan Robert Donald M. Attorney General Staff the State. Jacobs for appellant. Gardner F.
Carroll for defendant J. MooRE,
[1] Defendant’s assignment of error challenges single- capital by North Carolina cases. He followed procedure verdict trial with one de to a bifurcated entitled he is contends fixing punishment. and the other innocence guilt or termining 14-17, provides: G.S. statute, Our perpetrated by poison, shall be means of murder “A starving, torture, or other imprisonment, wait,
lying
premeditated killing,
or which
willful, deliberate
kind of
TERM
v. Sandebs
perpetration
shall be committed in the
attempt
perpetrate
*7
any arson, rape, robbery, burglary or other felony, shall be
in
degree
deemed to be murder
the first
shall
punished
be
rendering
with death:
if at
Provided,
the time of
its
in
verdict
open
shall
court,
jury
recommend,
punishment
so
shall
imprisonment
for life in
prison,
the State’s
and the court
shall so instruct
All
jury.
other kinds of murder shall be
deemed murder in the second
degree,
punished
shall be
imprisonment of not less than two nor more than thirty years
prison.”
the State’s
consistently
This
upheld
single-verdict
Court has
procedure
established
this
Boseboro,
statute.
'v.
185,
171
886;
2d
Ruth,
36,
S.E.
State v.
897;
170 S.E. 2d
State v.
Hill,
1,
276
170
2d
Atkinson,
N.C.
S.E.
275
288,
N.C.
167
2d
Peele,
274
106,
Counsel for very his brief frankly conceded this as signment to be without merit unless the United States Supreme Court present practice should overrule our by its decision in the case (8th Bishop, Maxwell v. Cir., 398 F. 1968), granted cert. 16, 1968, December 393 U.S. 89 S. Ct. 21 L. ed. 2d 462, pending in that Court at time defendant filed his brief. Maxwell involves containing provisions Arkansas’ statutes similar to those our North Carolina In allowing statutes. certiorari the Supreme Court of the United limited questions States considerations to and 3 of petition certiorari, viz: practice
“2. Whether permitting Arkansas’ the trial jury discretion, absolute uncontrolled standards or directions of any kind, impose penalty the death violates the Due Process Clause of the Fourteenth Amendment?
“3. single-verdict Whether Arkansas’ procedure, which re- quires guilt to determine punishment simultan- eously and a defendant to choose between presenting mitigating v. Sanders maintaining privilege punishment on the issue guilt the Fifth
against issue, on the violates self-incrimination Amendments”? and Fourteenth Maxwell, Supreme spoken has States Court now
The United (June 1970) L. ed. 2d 221. Without 398 U.S. Ct. S. Federal involved, case was remanded to deciding the issues hearing pros- in Arkansas for a on the exclusion of District Court scruples against penalty. The jurors the death who pective pending before United raised in Maxioell are still same issues but not think we should Supreme cases, Court in other we do States practice unconstitutional a anticipate that will declare Court many own, many This including years. our for so approved states, assignment is overruled. *8 assigns overruling as error of his motion Defendant next [2-6] (1) (members Negroes jury that all of defendant’s dismiss the for
to race) (2) deliberately jurors expressed all excluded, and who were for per were either cause or penalty the death excused opposition to jurors out of first 53 tendered sets that 9 emptorily. The motion after each of these 9 were excused cause Negroes, were 6 punishment capital to and would not opposed he was had stated years age was 84 of and was penalty. death Another consider the age, remaining of were court her and the two excused because proof of peremptorily. Defendant the burden of challenged v. 153 establishing Ross, 739, racial State 269 discrimination. Negroes particular petit jury from a The absence of S.E. 2d 469. presumption to raise a of discrimination. insufficient, itself, in and of 250, Brown, 272. Defendant does not State v. 271 N.C. 156 petit composed in right jury have to demand that his be whole his own or there be part persons proportional or in of race that of only persons intentionally of his not be but that race representation, Lowry of race. State v. and State v. jury from the because excluded 870, and cert. 536, appeal 139 S.E. 2d dismissed Mallory, 263 N.C. Mallory, 22, 227, v. 86 S. 15 ed. 2d 16 den. in State 382 U.S. Ct. L. (1965). properly juror excused the who court in its discretion remaining Negroes properly 6 were ex age, of and the years 84 capital concerning punish of their belief cused for cause because challenge. peremptory stated for a G.S. 9-21. ment. No cause need be of racial the court discrimination, In the absence part defendant’s motion. correctly overruled [7] The defendant further alleges that six Negro prospective others, contrary were excused for cause to the de jurors, as well as 1770, U.S. Witherspoon Illinois, 510, 391 88 S. Ct. 20 L. cision in n.c:j 607 v. Sandeks capital they opposed punishment. ed. 2d because Prior (1968), 776 that Witherspoon, to it was well established under the law North challenges Carolina was not to allow for cause by it error the State jurors prospective they to who stated had “conscientious scruples against might in a where such in- penalty” penalty case pursuant Atkinson, flicted to a guilty. supra; verdict Spence, 271 23, 802, 155 S.E. 2d 392 vacated U.S. 88 (first S. (1968); Bumpers Ct. 20 L. ed. 2d 1350 hear- ing), S.E. 2d rev’d Ct. U.S. S. (1968); ed. 2d v. Childs, 20 L. S.E. 2d Plowever, Witherspoon the Court said:
“The issue us is a before narrow one. It does not involve right prosecution challenge for cause those prospective jurors who their capital state that reservations punish- about prevent making impartial ment would them from decision guilt. as to the Nor it defendant’s does involve State’s asser- tion of a capital to exclude from the case those they say impose who that could never vote to penalty the death they or even imposition that would to consider its in the refuse case them. For Illinois stop there, did not before prosecution but authorized the all exclude well who said they punishment opposed capital and all in- who scruples against dicated had conscientious inflicting it.
# # Specifically, . “. . we hold that sentence death cannot imposed be carried out if recommended was *9 by excluding chosen they veniremen for cause simply because general objections penalty expressed voiced to the death or con- religious scruples against scientious or its infliction.” (Emphasis added.)
Again, in Footnote Court 21, the said: repeat, however, nothing say
“We that today we bears upon power of a execute a defendant sentenced to death only from which the veniremen who were in ex- fact cluded for those (1) cause were who made unmistakably clear automatically against would vote imposition punishment capital regard any without might evidence that developed trial at the case them, (2) before or their attitude toward the penalty prevent death would them making an impartial decision as to the guilt.'’ defendant’s no The record here discloses violation rule Witherspoon. very The trial court was careful to see that the solicitor, in exam- v. Sandeks rule. State, strictly adhered to that jurors for the ining prospective for stated: was excused cause Ruth E. Williams example, For capital punishment. believe “I do not might any you in which return “Q. don’t know of case You juror? if were chosen as you such verdict “A. Never. any under facts
“Q. circumstances, do it You wouldn’t case was and no matter aggravated the what how no matter case? facts were My it. wife and I discussed do it several
“A. I wouldn’t do I would not it. before, and times your up mind about it? “Q. made You’ve ago.” long “A. A time cause: was excused Mertes
C. C. capital punishment?” “Q. you Do believe you penalty. mean the death “A. I assume “Q. Yes sir. sir.
“A. No regardless any case, feel that of what the “Q. You don’t aggravated was, you how the case are or would circumstances returning a verdict that would involve give consideration penalty? do “A. I not. thought before, about this sir? you
“Q. Have Considerably. “A. you just something “Q. thought well, This this before? thought about
you’ve Oh, yes. “A. it? opposed to
“Q. you And are opposed to it. “A. I’m you are
“Q. you jury, saying chosen to sit on this If *10 give ver- you any returning consideration to would penalty? involve the death would dict which not. “A. I would i609 v. Sandeks facts
“Q. regardless of what circumstances, Under no of the case were?
“A. I would not.” Tommy stating: was excused for cause after Mrs. M. Jones I never sat on capital punishment.
“I don’t believe in have before. “Q. you case in which would you any Do feel that there’s involving penalty? consider a verdict the death “A. No.
“Q. returning such a verdict no You wouldn’t even consider aggravated matter what it was or how it was or kind case what the facts were?
“A. I wouldn’t.
“Q. Under no circumstances?
“A. No. thought
“Q. you Have about this before? thought Well, my it, “A. all of life I’ve ever since I’ve big enough things.” to know these been questions given by were asked and similar answers were
Similar jurors prospective perfectly other excused for cause. It is clear from prospective jurors, hearing these answers that each of these before any already evidence, up of the made his mind that he wouid pursuant might not return verdict law- fully might executed whatever In language be. majority opinion Witherspoon, jurors these made it clear “they impose penalty” could never vote to or “they imposition would refuse even consider its the case before them” against “they automatically imposition cap- would vote regard punishment any might ital without evidence that be de- veloped at the trial of the ease before them.” We there- conclude, fore, that there is no merit defendant’s contention that he has denied under been the Constitution of the United States sustaining challenges or the laws of this in the of any prospective juror’s cause the State reason of the statement of subject capital punishment. Witherspoon his views on the v. Illi- nois, supra; supra; v. Roseboro, Ruth, supra; State v. State v. Hill, supra; Atkinson, supra; Peele, supra; Spence Williams, supra. assignment challenges Defendant’s third of error as hear- [8-10] *11 v. Sanders robbery testimony Hunsucker, the second say certain of the witness and James robbed, had been victim. After Hunsucker bays service sta- one of the service of the Monroe ordered him into get knees; down on his as he did so tion and instructed him to crump- pistol, an automatic and Hunsucker Monroe struck him with Hun- leaving, As defendant and Monroe were led over on some tires. shoot, him say, him, of them “Shoot sucker testified he heard one said, he’s taken care of.” down,” “No, he’s and the other one while by know which statement was made testified he did not Hunsucker object, Defendant did not but Hunsucker testified defendant. object and moved to strike. His motion was denied. Unless he did objection ample opponent as soon as the has the an is made time opponent will opportunity objectionable, to learn the evidence Edwards, have waived it. State v. 274 N.C. 163 S.E. be held to testimony revealed from the first that he was 2d 767. The Hunsucker Hence, identify spokesman. defendant should have ob- unable However, failure to do so constituted a waiver. we jected, and his competent. testimony hold this Defendant and James Monroe were engaged robbing operated by service station Hun- jointly part conspiracy prior robbery. sucker of a entered into to the as which testified were made in the course statements to Hunsucker undoubtedly gestee: res law robbery part is, as “The persons together or associate for where two or more combine the. illegal purpose, fraudulent or act or declara- prosecution of some object, tion made one of them furtherance of the common given in forming part gestee, may against the res evidence Davis, v. 177 N.C. 785. Accord, the other.” State 2d Gallimore, Boss, 158 S.E. sufra. testimony concerning Defendant in his brief admits that the two competent robberies was in the trial of the defendant for murder purpose showing identity of the accused and to prop- for the erly develop the murder Atkinson, cases. State v. supra; McClain, 2d 81 S.E. 364. It follows during robbery, the course of the then statements made whether partner crime, competent. or his would be This assignment is overruled.
[11] Defendant next contends alleged confession was not vol through fear, untary product because it was the of coercion and that rights knowingly, voluntarily, intelligently he did waive his purported confession was con and, therefore, the admission trary Arizona, to the decision in Miranda v. 384 U.S. 86 S. Ct. lays (1966), ed. A.L.R. 3d 974 down 16 L. governing principles prerequisites as the constitutional ad- v. Sanders during missibility accused custodial of statements obtained police properly a defendant has been interrogation. However, after may waive these rights provided Miranda, advised of his *12 know- rights voluntarily, waiver is made provided constitutional ingly, intelligently. cert, 581, 2d Wright, 84,
As stated in State v. 274 161 S.E. N.C. (1969): den. 24 2d 232 934, 275, 396 U.S. 90 S. Ct. L. ed.
“
admissibility
by
is whether the statement
‘The test
voluntarily.’
Gray,
defendant was in fact made
State v.
268
also
v.
233 N.C.
Rogers,
In the a voir dire as to the voluntariness jury, the absence of the conducted by the defendant to the officers. purported statement made testimony Linville, E. who offered the of R. detective The State Beane and Carter. The de- interrogated defendant, Officers tended testified in his own behalf. The defendant’s evidence fendant many present, was scared because so officers were to show that he questioned he heard officers outside the room and that before he sitting statements, got boy “We black in which he was make the us him and take him and let fixing lynch,” are and “Let have we blackjack”; an accident with a and that Officer Linville him have easy yourself everybody else, said, you “If want to make said just anything you us want to tell us.” Defendant further tell tell him did not understand what Officer Linville tried to that he rights did tell him that he was about his and that OfficerLinville present any threats lawyer. to a The officers denied entitled was lo- inside or outside the room which the defendant were made cated, denied statement at- Linville made the Officer testimony as to to him the defendant. Officer Linville’s tributed IN THE COURT SUPREME v. Sandees or not concerning his to make make what he told lawyer present correctly set right to have and his any statement testified that he told findings of fact. Officer Carter judge’s out good he needed in serious trouble and “that he was defendant that hearing one then.” After the evidence “he needed attorney” and that found: the court Community was detained Ser-
“That City Winston-Salem, floor of Hall of the second vices Room Lin- adjoins a room with the office of Detective and that room approximately thirty minutes kept there ville; that he questioned neither whom police officers, two custody of fur- during period him of time. The court talked to him or at no time while the defendant was finds as a fact that ther any anyone any or else make threat to him officer custody did description, any nor did officer make any kind, nature which was overheard the defendant and could statement *13 any threat any construed to constitute of nature or be constitute description. finds as a fact further Detective Linville “The court shortly February 4th, after one a.m. to the defendant talked forty-five more than minutes from the time which was not on the corner of apprehension Stratford Road the defendant’s of Street; asking and Miller Drive that before Country Club relating charges against any questions to the defendant 4th, on did, February Linville at Officer defendant, following in quotations: the defendant the a.m. read to 1:06 “ any rights. you questions, you Before we ask must ‘Your right rights. You have the to remain your silent. understand against you say you can be used Anything court. You right lawyer talk to a for advice before we ask to have during him with any questions you ques- and to have you afford a will tioning. you lawyer, appointed If cannot one any questioning you before if If you by court, wish. questions, lawyer present, now without a to answer you decide any stop answering have the to at time you will still lawyer.’ you talk to until signed thereupon appearing a statement
“The defendant on reading as follows: page, the same “ read this rights: my I have statement ‘Waiver my rights willing I what are. am rights and I understand questions. and answer I do not want a a statement make I know what I am do- at this time. understand and lawyer v. Sanders ing. promises No or threats have been made me and no pressure any against or coercion of kind has been used me by anyone.’ signed by
“That was the defendant at 1:10 on February a.m. 4th, 1969. The court further finds as a fact that agreed thereafter made statement to Officer Linville and may tape be recorded on a recorder to be transcribed later. thereupon The defendant freely, knowingly voluntarily, understandingly, any hope promise without of reward or of re- ward, and without duress or fear amade statement to Offi- making cer Linville. Before the statement and while the waiver rights being him, Henry was read to Mr. Carter, C. the chief of the detectives for the Winston-Salem Police Department, who present time, at the told the defendant that it was his — opinion officer’s that he an attorney, needed a good attorney, then, that he needed one because he was in serious replied trouble. The defendant that he knew he was in serious request attorney. trouble but made no for an On the afternoon February 4th, 1969, between the hours of three-thirty and p.m., six Officer took Linville the statement which had been jail county transcribed to the defendant and with the de- in question fendant read the statement and answer form as it made, tape and transcribed from the recorder. The defend- person’s ant made one correction of another appearing name statement, stated that the rest of it was correct and initialed page except page last signed. each which he The court fur- ther finds as a fact graduated high Sanford, school in North Carolina, eighteen when he was years age; that he was in February, 1969, twenty-two years age; *14 signing that before the waiver of rights, it was only read along to him with a statement of his rights, but he followed it copy on another of the document, reading same it to himself as it was read to him. The defendant had a full understanding of lawyer right his and his not to answer questions, rights of all other relating and constitutional making to the police the statement officers. The defendant was relatively police calm when he talked to the officers in gravity view of the charges against of the him. He was informed any ques- before him, tions were asked that questioned he would be about two shooting armed robberies and the upon or assault two police Surry County; officers in fully that he understood the purpose that questions him, were asked the seriousness of the ac- rights and all cusation, Upon afforded him. the fore- THE SUPREME IN COURT
State v. Sandeks opinion, and finds the is so findings, court going rights each of the and understood knew each defendant was document, A; that he rights on the State’s Exhibit set out hope no had no reward, offered reward and hope offered no he no coercion fear and that volun- was under reward. He understandingly made statements Officer tarily, knowingly, objection to evidence of- Findings the Upon such Linville. excepts.” overruled, and the defendant by the State fered support findings that defend- competent evidence to There is rights freely, fully of his defendant advised ant been rights waived understandingly his to counsel voluntarily, and voluntarily understanding. and with Such find- made statement judge conclusive, the statement ings by the trial are of fact Wright, supra; properly was admitted. v. made defendant 2d cert. Gray, v. 150 S.E. den. 386 U.S. (1967). assignment 17 L. 2d 784 This is overruled. Ct. ed. 87 S. [12] Defendant next assigns as error court’s refusal to allow made con explain an admission on cross-examination defendant to cross-examination cerning a conviction. On testi prior Superior simple assault in “I convicted of Court on fied: was charge Superior it was was Court because bound female. The you where had a hearing, know, from a little court over took a warrant and read they bound it over. She out the warrant rape and I was convicted of assault assault with intent to commit put probation probation on and am on on a female. I now.” On explain was asked to examination defendant assault redirect objection objected and charge. sustained. Defend The State charge excepted and for the record testified: “It stemmed from ant rape intent and whenever went to little of assault with to commit we big lies, got Court, whenever we to the Court, girl she told Judge charged truth, and the me assault a fe she told the just say anything I guilty I that but didn’t about it. male. wasn’t accepted suspended I the sentence.” that because [12-14] opportunity was entitled to full to correct or Defendant response impeaching questions. his answers in to the explain 3; Oxendine, 2d King, 34 S.E. Co., Keller v. Furniture 154 S.E. (3d 1963). appears ed. N. C. Evidence But here Stansbury, § already testified to the excluded that defendant had the substance of witness lies in the testimony. prosecuting The fact told *15 “big resulting court” but told the truth “little court” female, assault on a and the fact that conviction of defendant .. 615 v. Sanders guilty say anything not about it because sentencé was not but did be sub- suspended, from, neither added to nor subtracted given testimony already which defendant had manner, stantial on a with to charged with assault female intent commit that he simple put of. assault on a female and rape only but convicted prejudicial perceive no harmful or result defend- probation. We Elder, State v. 217 6 2d Ill, ant’s cause on this account. N.C. S.E. appear warrant a new trial there should be made to that 840. To prejudicial was material and to defendant’s ruling complained of likely rights and that a different result would have ensued. State v. Paige, 417, 522; Woolard, 133, S.E. 2d State v. 260 N.C. 272 N.C. 158 863; 2 364; Lamb, 719, v. 215 S.E. 2d 132 S.E. 2d Collins N.C. Beal, 604; Stancill, 683, 278, 199 N.C. 154 S.E. v. 178 N.C. case, 241. In view of the serious nature of the facts
100 S.E. ruling assignment we not think this affected the result. This do overruled. erred in Defendant next contends the court overrul
[15-19]
judgment
charge
as of 'nonsuit on the
ing his motion for
murder
premeditation
degree
in the first
for the reason
the evidence
jury.
was not sufficient to submit to the
To sustain
and deliberation
degree
case,
in this
of murder
the first
the evidence must
verdicts
finding beyond a
support
reasonable doubt that the
be sufficient
malice,
premeditation
deliberation,
inten
tionally
may
two officers.
presumed
shot and killed the
Malice
jury beyond
which satisfies the
a reasonable
from evidence
doubt
proximately
pistol
officers
from
death of the two
resulted
by the
intentionally
Propst,
fired at them
defendant. State v.
shots
560;
Payne,
62,
719,
S.E. 2d
State v.
213 N.C.
197 S.E.
274 N.C.
161
premeditation
are
additional elements
deliberation
573. The
proof,
direct
usually susceptible to
but must be established
surrounding
v. Walters,
circumstances
the homicide. State
Faust,
2d
2d
State v.
254 N.C.
118 S.E.
615, 170 S.E.
2d
cert. den. 368 U.S.
82 S. Ct.
7 Lr
769, 96 A.L.R.
(1961).
“thought
Premeditation means
beforehand” for
2d 49
ed.
short. State v.
length
time,
McClure,
however
166 N.C.
some
Benson,
This
said
State v.
Court
S.E. 869: blood, in a in furtherance of a fixed cool state by unlawful accomplish purpose, some and not design ... passion, suddenly a violent aroused influence of some under the legal provocation.” Perry, just cause or lawful or supra; Bowser, Faust, 339, 31; Strong’s No 2d, N. Index Homicide C. 199 S.E. § *16 SUPREME COURT IN THE v. Sandeks processes premedi- required for the mental fixed amount of time is constituting an element of the offense of tation and deliberation being processes if mental degree, murder in the it sufficient these first simultaneously killing. with, the prior to, occur and not supra; Brown, 11 S.E. 2d Walters, Strong’s N. Index Steele, 2d, C. 130 S.E. Homicide 4.§
[15] The evidence of
this
tragic occasion,
which comes either
from his testimony
statement
to the officers or
at
from defendant’s
legitimate
to make a
in
clearly
permit
sufficient to
trial,
This evidence
premeditation
and deliberation.
discloses
ference
doing
law who
shot and killed two officersof the
what
defendant
— investigating
armed robberies committed
duty required
their
two
companions.
and his
the of
a short time before
defendant
When
Monroe,
driver,
of them asked Charles
stopped
car,
ficers
one
gave
policemen
to him. The
license,
for his driver’s
Charles
occupants
robbery,
they
had been an armed
told the
there
occupants gave
permission
search the car. The
their
would like to
slipped
pistol
edge
his
under
they got out,
and as
James
When Officer Branscome searched
Monroe
of the car.
would have
pistol
belt,
under his
he told James he
to take
found
James,
As
officer started to handcuff
defendant reached
him in.
got
and shot
Branscome. The officer screamed
down,
pistol,
his
Officer
shooting
stopped screaming.
him until he
and defendant continued
running
patrol car,
then saw
East
toward the
Defendant
Officer
ran
him and fired until all the bullets were out of
defendant
behind
pistol
was
so he took
East’s
pistol;
screaming,
OfficerEast
Officer
screaming.
stopped
until he
In his state
and shot him the head
said
shot both officers in the
officers,
ment to the
he
head
emptied
pistol
pistol.
had
his own
When
with Officer East’s
he
why
officer,
picked up
defendant answered: “I
asked
he shot the first
my weapon
put
started to
the handcuffs on James. I
whenever he
up.
things I
why picked
many
I
know
I
So
was
don’t,
really don’t
—
thinking
thinking
many things at one time. I was
about what
so
added.)
guess.” (Emphasis
I
After defendant
face,
I would have to
—pistols
his,
cartridges,
which held
and the
emptied
both
nine
two
belonging
East,
officers,
which held six
into the
one
Officer
enough
ask
started to
defendant was still cool
Charles
license.
Charles said
leave the scene if he had his driver’s
When
Branscome over and took
“No,” defendant and
rolled Officer
Charles
said the
pocket.
out of the officer’s shirt
Defendant
Charles’ license
whether he
bleeding
but he did not know-
time,
officer was
at that
absence of
excuse
provocation,
The want of
dead or not.
v. Sanders
shots
the fur-
fired,
shooting,
number
justification for the
help-
apparently
after he was down and
shooting of each officer
ther
because
shot the
officer
he
and defendant’s statement
less,
a reasonable infer-
facing him,
permit
all
thought
what
than
arrested
kill
rather
the officers
defendant decided
ence that
*17
of
and deliberation.
legitimate
premeditation
inference
a
permit
and
itby
go
jury
to
considered
to
the
This evidence was sufficient
supra;
degree.
Perry,
State v.
in the
issue of murder
on the
402,
2d 188.
v.
232 N.C.
61 S.E.
Faust, supra;
Lamm,
State v.
[20]
Next
the
defendant
contends
the
trial
judge
failed to
prop-
in
parties
contentions of the
array
the
state the evidence
erly
required
is not
of all the evidence
charge.
recapitulation
The
a
instruc-
nothing
required
more
than
clear
1-180,
G.S.
under
gives
position
the
applies
law to the evidence
the
tion
of
features
the case. State
parties
the
as to the essential
by
taken
If
desired
G.S.
degree might
arraignment
with murder in the first
dictment
guilty
signed
counsel,
plea
himself
writing,
by
tender in
and his
v. Sanders
might-
approval
court,
with
crime,
State,
of such
and the
accept
plea
reject it,
such
in which latter event the trial should
plea
proceed upon plea
guilty,
guilty
of not
and the tender of
legal significance.
plea
accepted,
If
this would
would have no
charged
jury
guilty
of the crime
be tantamount
verdict
punishment
imprisonment.
be life
recommendation
Jackson,
In United States
supra,
the Court considered
in its
Kidnapping Act,
opinion
Federal
and observed
U.S.C.
originally
Congress
enacted
Kidnapping
that the
Act
1932'
provision
capital punishment.
contained no
for the infliction of
An
provision authorizing
amendment
inserted
enacted
penalty
imposed
specific
under
to be
circumstances “if the
verdict of the
shall so recommend.” The decision of the Jackson
case was that
the amendment of 1934 was
for the
unconstitutional
imposed
impermissible
upon
reason that
burden
the exercise
of the defendant’s constitutional
a jury
demand
trial. Prior
adoption
amendment,
violating
to the
of the 1934
one accused of
*18
Kidnapping
Federal
right
Act could exercise his constitutional
to-
a jury
penalty
jury
demand
trial without risk of
if
the
the
guilty.
found him
Under the 1934 amendment, he could not. For this
reason,
held
authorizing
jury
the Court
the 1934 amendment
the
to-
penalty
fix
unconstitutional,
the
at death was
not because the death
penalty per se is unconstitutional but because the 1934 amendment
discouraged
the exercise of the defendant’s constitutional
to a
by jury.
trial
original
then held that
Kidnap-
Federal
Court
the
ping Act could and
a separate,
statutory
should stand as
divisible
en-
apart
actment
from the 1934 amendment.
[21]
Our
Court
has
considered the effect of
Jackson on G.S. 14-17
and G.S.
and has
15-162.1
held that if G.S. 15-162.1 should be held
upon
grounds
invalid
suggested
the
in United
v. Jackson,
States
supra, or otherwise, such decision will not and cannot affect the
validity
14-17, wholly
of G.S.
separate,
independent, previously
existing
surviving
Thus,
statute.
the decision
United States
Jackson, supra,
judgment
did not at the time of
the
this case,
now,
and does not
forbid the courts of this
impose
State to
sen
the
pursuant
tence of death
to a verdict
jury
with
accordance
(276
supra
Hill,
G.S. 14-17. State v.
885);
N.C.
170
S.E.
(275
v. Atkinson, supra
241);
N.C.
167 S.E. 2d
Spence
(274
Williams, supra
164
2d 593);
v. Peele,
(274
supra
Defendant did not guilty provisions offer to under the of v. Sandebs on the commission in effect the date of 15-162.1 which was G.S. what upon are called decide alleged hence, we not murders; Carolina, had. Parker v. North plea effect such a would have See States, (U.S. Brady v. United May 4, 1970); U.S.L.W. (U.S. 1970). of not plea was tried May He 38 U.S.L.W. degree 14-17, charges murder in under G.S. guilty to two upon has, repeal 15-162.1. The after the G.S. judge, trial found full instructions of the
offered, under and correct imprisonment. of life guilty as without recommendation charged, him return such verdicts authorized The statute of judgments contained thereupon, to required judge, enter supra, For, J., Hill, by Higgins, was said the record. change, to, add or take modify, did repeal "the of G.S. 15-162.1 14-17, which the indictment here involved from G.S. under jury as without recommenda- drawn. The verdict of the returned imprisonment required for life punishment tion that assignment of error impose death sentence.” This court to overruled. permitted at this trial evidence introduced
We conclude that the support findings malice, premedita- that the and will killed just excuse, shot and without cause or deliberation, tion East, engaged who Ralph and Officer Glenn Branscome Officer duty. com- fact, In this evidence almost performance their pels findings amply sustains the verdicts. such assignments a careful the defendant’s
After consideration us in justify in the which would error, find no of law trial we error judg- modifying in vacating or granting defendant a new trial ments.
No error.
*19
J.,
dissenting
to death
Bobbitt, C.J.,
sentence.
Shaep,
judgment
imposing the death sentence.
to vacate the
We vote
degree
in
guilty
murder
first
verdict of
of
the
opinion,
In our
the
pronouncement
for
of
cause remanded
upheld
and the
should
imprisonment.
of
judgment imposing a sentence
life
3, 1969, when
statutes
February
on
our
crime was committed
degree
in the
for murder
relating
capital punishment
opinion that, until
It
and is our
14-17
G.S. 15-162.1.
G.S.
the
25, 1969,
decisions of
on March
the
repeal of G.S.
the
15-162.1
Jackson, 390
in United States v.
United States
Supreme
Court
(1968),
Pope
and in
1209
138,
L.
2d
88 S. Ct.
570, 20
ed.
U.S.
(1968),
1317,
L.
2d
NATIONWIDE MUTUAL INSURANCE COMPANY v. CHARLES LEROY HAYES, GWYN, GWYN, SHAFER EWELL SHAFER EWELL Adminis GWYN, LYNCH, of BERNICE O. GLENICE KEY trator of the Estate LYNCH, LYNCH, DONALD JOE DONNA CHERYLEEN and GREAT AMERICAN INSURANCE COMPANY
No. 50 (Filed 1970) 12 June 79, 85; — 1. Insurance Automobiles 5— §§ automobile insurance § liability coverage non-owner’s transfer of title liability policy recently purchased An insured under a non-owner’s whose January automobile in an was involved on accident was covered provision policy under a non-owner’s if stated that the insured acquired ownership during period policy policy of an automobile apply respect ownership shall to the or use of the automobile “for period days following acquisition,” of 30 next the date such the insured acquired having meaning (b) title to the automobile within the of G.S. 20-72 (1) 28 December where the evidence effect