State v. Westmoreland, 181 N.C. 590 (1921)

May 25, 1921 · Supreme Court of North Carolina

181 N.C. 590

STATE v. W. Y. WESTMORELAND.

(Filed 25 May, 1921.)

1. Appeal and Error — Objections and Exceptions — Contentions of Parties.

Exceptions to the statement by the judge to the jury of appellant’s contentions taken after the rendition of the judgment adversely to him and in his statement of the case on appeal does not afford the trial judge an opportunity to correct the error, if any, he has made therein, and they will not be considered in the Supreme Court on appeal.

a. Homicide— Murder— Evidence — Corroborating Circumstances — Clothing.

Where the defense upon a'trial for a homicide contends that another person with him at the time committed the crime, and there is evidence to convict the accused, it is competent to show the clothing worn at the time by such other person in corroboration of the State’s evidence that tended to show the companion of the prisoner could not have carried his pistol in his hip pocket as the accused contended, as the clothes he was then wearing had no hip pocket in them,

3. Homicide — Murder—Premeditation—Evidence—Preconceived Intent-Deliberation.

Testimony of facts and circumstances which occurred after the commission of a homicide which tends to show a preconceived plan formed and carried out by the prisoner in detail, resulting iii his actual killing of the deceased by two pistol shots, without excuse, with evidence that he had thereafter stated he had done as he had intended, is competent upon the question of deliberation and premeditation, under the evidence in this ease, to sustain a verdict of murder in the first degree.

4. Homicide — Murder—Intent—Robbery—Evidence—Statutes.

Evidence tending to show that the prisoner killed the deceased in the perpetration or attempt to perpetrate a robbery, is expressly made competent by C. S., 4200, and may be considered by the jury in determining the degree of crime, and whether the accused committed the highest felony or one of lower degree.

Appeal by defendant from Bryson, J., at the January Term, 1921, of Ieedell.

This is an indictment against the prisoner for the murder of J. H. Nance, which the State alleges was committed under the circumstances detailed in the testimony of its witness, Ivey Sims, the substance of which is hereinafter set forth.

The State’s witness, Ivey Sims, and the defendant, W. Y. Westmore-land, were in Statesville on the night of 20 October, arriving there about 11 o’clock. The defendant persuaded Sims to go with him to his home, which was below Troutman’s, in Iredell County, telling him that he, Westmoreland, would hire a car and take him out there to spend the night, and would come back in time in the morning to take a train for Landis, where tbe witness Sims resided. Westmoreland did hire tbe deceased, Nance, to take them out. A man named Alley went with them as far as Troutman. After Alley bad left tbe car they drove on to Westmoreland’s home, and tbe following occurred, according to tbe testimony of Ivey Sims: “Just before be got to tbe bouse, I could see tbe bulk of tbe bouse, and tbe car driver asked Mr. Westmoreland, ‘Is here where you live?’ and Westmoreland said ‘Yes.’ Tbe car stopped in front of Mr. Westmoreland’s borne, right at tbe gate. When be drove up Mr. Westmoreland started to get out, and I started to get out right behind him, thinking be was going to pay tbe man, and let him go back to town, and be said, ‘You and tbe car driver stay here until I go in tbe bouse and see if there is any one at home.’ Tbe car driver got out and measured bis gas, and be said, ‘I have more gas than I thought I bad.’ He said, ‘I didn’t think I bad but a gallon, but I have two gallons.’ He got back up in bis car and set down under tbe steering wheel, where be sat to drive bis car. At that time I was in tbe back seat, sitting right behind tbe driver, where I sat coming down. I laid down in tbe back seat. I got sorter chilly driving down there, and bad dozed off in a sleep, and be waked me up when be come back to tbe car — Mr. West-moreland speaking to tbe car driver. He said, ‘Why tbe man in tbe back seat is about to go to sleep,’ and tbe car driver turned bis bead like. Tbe car driver said, ‘Yes; I believe be is,’ and didn’t more than say ‘Yes; I believe be is,’ until tbe pistol fired. I raised in tbe back seat and said, ‘What in tbe world is tbe matter, Mr. Westmoreland?’ He bad tbe gun up that way (illustrating), and cut bis eye over toward me, and never spoke, and leveled bis gun and shot tbe man in tbe bead again. I did not see tbe first shot fired. I beard it. That woke me up. I raised up then. When be fired bis second shot tbe driver was sitting in bis car in that position (illustrating) like be was looking down into tbe foot of tbe car. That was tbe second shot. I then stepped out of tbe car on tbe opposite side from where Mr. Westmoreland was standing. I stopped there side of it and was scared so bad I didn’t know what to do or what to say, or what to think; and be said, after be shot him, ‘That is what I have been wanting to do for a long time.’ He was sticking bis gun back in bis pocket and gave me orders to get up in tbe car and pull tbe man over tbe front seat, and be stepped up in tbe front seat, and I stepped up in tbe back seat, and was slow about taking bold, and be told me again, be said, ‘Take bold and let’s get him in tbe back seat,’ and be caught bold of tbe man under bis legs that way (illustrating), and lifted him up, and some change fell out of bis pocket, and be went through bis pants’ pockets and searched them. I don’t know bow much money be got, anyway, be got some, and stuck it in bis pocket, and be found a gun on tbe seat or in the man’s pocket one, and be said, ‘That is what be has been toting for me/ and stuck it in bis bip pocket, and be said, Tull up on tbe man/ and I pulled up, and be lifted bim, and we bad bim laying over tbe car something like that (indicating), and be gave bim a throw, and throwed bis legs in tbe foot of tbe car. I bad to jump up on tbe back seat to keep bim from falling on me, and be stepped out of tbe car and pushed bis feet up in tbe car and shut tbe door, and said to me, 'You get in tbe front seat here and ride with me.’ I stepped out of tbe car and got in tbe front seat with bim, and be cut tbe car around and started back up tbe road, where be come in toward tbe main road, and I said to bim after- be started, 'What in tbe world are you going to do with tbe man, Mr. 'Westmoreland?’ He said, 'You keep your mouth shut and don’t you say anything.’ ”

Tbe prisoner denied that be killed Nance, and alleged and testified that Ivey Sims was tbe guilty party. We need not state any more of tbe testimony, as it is only necessary to show that there was evidence on tbe part of tbe State to support tbe verdict, as we are not weighing it, that being tbe province of tbe jury.

The prisoner was convicted of murder in tbe first degree, and from tbe judgment appealed to this Court. Tbe prisoner assigned fifteen errors, tbe first three were abandoned, tbe fourth, fifth, sixth, and seventh will be hereinafter set forth. Tbe eighth, ninth, tenth, eleventh, twelfth, and thirteenth will be discussed in tbe opinion without being set out in full, and tbe fourteenth and fifteenth are merely formal. Tbe following objection to evidence and rejected prayers are those we deem it proper to state in full, numbered 4, 5, 6, and 7:

''4*. Tbe court erred in permitting tbe State to introduce or offer in evidence tbe coat and trousers of tbe witness Ivey Sims.

“5. Tbe premeditation and deliberation necessary to constitute murder in tbe first degree must precede tbe killing. Acts and conduct of tbe defendant after tbe killing are not to be considered as evidence of premeditation and deliberation. ' If you find from tbe evidence in this case that tbe defendant shot and killed tbe deceased and afterwards moved or caused bim to be moved in tbe car, and loose change fell from bis pockets, and later that tbe defendant searched tbe pockets of tbe deceased and took therefrom money, watch, and other articles of personal property, such acts would not be evidence of premeditation and deliberation, and you will not consider them as such.

“6. Tbe court further charges you that tbe fact that tbe deceased was put in a well, if you find such to be a fact from tbe evidence, is not evidence of premeditation and deliberation, and tbe jury will not consider such act as evidence of premeditation and deliberation.

“1. Tbe court further instructs tbe jury that if you find from the evidence that the defendant later took tbe car of tbe deceased and ran away witb it and was later arrested at Newton, and was found witb articles of personal property, watch or any other property belonging to tbe deceased, sucb facts and circumstances would not be evidence of premeditation and deliberation, and tbe court instructs you not to consider tbem as sucb.”

Attorney-General Manning and Assistant Attorney-General Nash for the State.

Z. V. Turlington and J. R. Burhe for defendant.

Walker, J.,

after stating tbe case: Tbe six exceptions to tbe charge of tbe court were taken to that part of it which consisted in tbe statement by tbe court of tbe contentions of tbe State. We have examined these several instructions witb a view of determining if tbe defendant could have been, in any degree, prejudiced by tbe manner in which tbe contentions were stated, and we have found nothing objectionable in tbem, but, on tbe contrary, they were exceedingly fair and impartial. Tbe prisoner’s contentions were stated in tbe same way, and nothing was said or omitted that could have prejudiced him in tbe least. These exceptions from Nos. 8 to 13, both inclusive, came within tbe well settled rule of tbe Court that objections to tbe statement of contentions must be made promptly so that they may be corrected. Tbe latest cases on this-subject are S. v. Hall, ante, 527; McMahan v. Spruce Co., 180 N. C., 636; Hall v. Giessell, 179 N. C., 657. There was not tbe slightest intimation of opinion by tbe judge, and tbe prisoner has not, in law, been harmed by anything be said. This disposes of all tbe assignments of error except tbe three which were properly abandoned, tbe two which were merely formal, and tbe four which have been reserved.

Tbe fourth assignment is without merit. Tbe issue sharply raised by tbe contentions of tbe parties and tbe evidence was whether tbe prisoner or tbe witness, Ivey Sims, shot Nance, and in order to show that it was impossible that Sims could have done so, bis coat and trousers were exhibited to tbe jury, which furnished evidence of tbe fact. We do not see why this was not competent and relevant as a circumstance to be considered and weighed by tbe jury in passing upon tbe disputed -question as to which of tbe two men fired tbe fatal shots. As tbe prisoner has attempted by bis own testimony to show that Sims carried a pistol in bis hip pocket witb which be did tbe shooting, it was clearly competent, by exhibiting bis clothes, to show that this was impossible and therefore untrue. Similar evidence was admitted below in S. v. Vann, 162 N. C., 534, 539, and approved by this Court. It is said in Underbill on Criminal Evidence, sec. 47: “An article of personal property, tbe relevancy of which has been shown by its identification witb tbe subject-matter of tlie crime, may be exhibited to the jury in the court room, either as direct evidence of a relevant fact or to enable them to understand the evidence, or to realize more completely its cogency and force.” The prisoner objected to this evidence upon the ground that it was immaterial, and the ordinary rule in an appellate court confines him to the specified ground, but owing to the importance of the case we have discussed its competency generally. In his brief he insists that the evidence, “because of the great weight attached to an ocular demonstration,” was prejudicial to him. This view is fully answered in S. v. Vann, supra. It is not a valid ground of objection to evidence that it tends to prove the fact in question more conclusively when the article to which it refers is exhibited, instead of being left to a mere description of witnesses. Such an objection fails to take into account the distinction between the strength of evidence and its competency or relevancy.

We come now to the three exceptions raising the question whether what occurred immediately after the homicide is evidence of premeditation and deliberation on the part of the prisoner.

There are authorities for the position that any unseemly conduct toward the corpse of the person slain, or any indignity offered- it by the slayer, and also concealment of the body, are evidence of express malice, and of premeditation and deliberation in the slaying, depending, of course, upon the particular circumstances of the case. S. v. Robertson, 166 N. C., 356; People v. Beckwith, 108 N. Y., 67-75; Commonwealth v. Umilian, 177 Mass., 582; Commonwealth v. Best, 180 Mass., 492; S. v. Dickson, 78 Mo., 438; Duncan v. Commonwealth, 12 S. W., 673; 21 Cyc., pp. 897, 898. It was said in People v. Beckwith, supra: “Then followed immediate but well-considered mutilation of the body into convenient parts for burning and its attempted destruction, but especially, and first, such parts of it as contained peculiar marks, as the head, the hand, the foot. On the same day, falsehood by Beckwith as to the thing burning in the stove and the going away of Vandercook, his own flight, taking with him all. articles of value or of use from the pockets of the dead man. These are among the circumstances which might well lead the jury to the conclusion that there was, on the part of the defendant, malice and an intention to kill, and that the killing by him of Vander-cook was in pursuance of premeditation and deliberation, rather than the effect of sudden anger and without design.” But we need not rest our decision on this ground or approve all that is said in some of the authorities we have cited, because we think there is evidence in the record that what occurred immediately after Nance was killed formed a part of a plan conceived by the defendant before the homicide was committed, he having deliberately and premeditatively determined beforehand not only to slay Nance, but also decided how he would conceal the dead body so as to escape tbe penalty of tbe law for bis crime. This was one thing tbat induced bim to bill Nance as be considered it safe to do so, not being willing to take any chances witb tbe law. He bad planned for tbe disposal of tbe body by its concealment in tbe unused well, and bis conduct as be and Sims left tbe place where tbe murder was committed, and what be said to Sims about where be was going and what be intended to do witb tbe body, all went to show tbat be bad thought out tbe entire scheme in tbe beginning and bad weighed it before arriving at tbe definite conclusion to kill. Tbe means of concealment and tbe secret disposal of tbe body, which be bad devised and which be evidently believed would be successful, bad emboldened bim to commit tbe fatal act. His acts throughout were continuous, proving to be one connected whole. As soon as be bad killed tbe deceased be instantly began to dispose of tbe body in such manner, witb such precision of method and witb such dispatch and expedition as to indicate tbat it was something be bad was absolutely no necessity for doing so, as appears unless for tbe pur-conceived plan of murder. There was no time for reflection needed and consequently no hesitation about what be would do, because all of tbe thinking* and deliberation bad been done before. A somewhat similar question arose in Litton’s case, 101 Va., 833, where tbe Court said, at page 843: “Tbe homicide bad been clearly proven, and there was direct evidence on tbe part of tbe Commonwealth to show intent, deliberation, preparation, and malice on tbe part of tbe prisoner by proof tbat be bad in bis possession shells fitting tbe gun be used, .and which bad been loaded previously to tbe homicide witb similar shot to those which entered tbe body of tbe deceased. ... It was clearly admissible, as we have said, to show deliberation, preparation, and malice; and tbe court having, in clear and unmistakable terms, instructed tbe jury to disregard it if they bad reasonable doubt tbat tbe prisoner was connected witb tbe two shells produced, there was no ground left upon which be could complain of its introduction.” See, also, S. v. Brown, 168 Mo., 449; Luton v. S., 64 S. W., 1051. This case is stronger than either of those in its facts, and it differs in tbe respects enumerated from S. v. Foster, 130 N. C., 666, where flight alone was held not to be evidence of premeditation and deliberation, so as to raise tbe crime of murder to tbe first degree, tbe idea being tbat if Foster bad committed only murder of tbe second degree or manslaughter, be might just as well have resorted to flight as a ready escape from punishment. But there are other facts and circumstances here which point to a time before tbe murder, and are of a more significant character. 3 Rice on Evidence, p. 221.

In Stanley v. S., 64 S. W., 1051, it is said: “Exception No. 2 of tbe defendant complained tbat tbe court erred in permitting tbe introduction of certain testimony going to show tbat, shortly subsequent to tbe homicide, witness met appellant and that ajipellant bad a target gun concealed on bis person. Tbe court states in tbe charge that said testimony was admitted as going to prove appellant’s animus and tbe condition of bis mind, relating back to tbe intent with which be struck deceased and caused bis death. It is well settled that declarations of appellant which tend to develop tbe res gesice or show tbe intent or motive with which tbe crime was committed, both before and after tbe crime, are admissible- testimony.”

Tbe substantial question in our case is whether tbe prisoner or Sims fired tbe fatal shot, and tbe jury have settled that against him. There can scarcely be any doubt on tbe question of “premeditation and deliberation” or that it was done in cold blood. Why did tbe prisoner leave tbe motor car, go to bis bouse in tbe dark and get bis pistol? There was absolutely no necessity for doing so, as appears, unless for tbe purpose of using'it as be did. He bad ample time for reflection and tbe formation of a definite purpose to kill, and be was not long in executing bis purpose, and so immediately did be do so as to leave no room for any but one conclusion, which is, that be intended to shoot Nance with it.

Tbe other facts recited in tbe prayers for instructions, as to premeditation and deliberation, were competent, as they tended to show that be killed in tbe perpetration or attempt to perpetrate a robbery, which is especially mentioned in tbe statute as an act constituting murder in tbe first degree. They were pertinent circumstances to be considered by tbe jury in determining the degree of crime, and whether tbe prisoner bad committed tbe highest felony in tbe law of homicide as defined by tbe statute or one of lower degree. O. S., 4200.

The prisoner was well acquainted with tbe neighborhood where tbe crime was committed and where be lived. He knew where to find tbe abandoned well, in which be intended to cast tbe dead body of bis victim, and be carried out bis preconceived plan with great secrecy, even telling Sims “to shut up” when tbe latter inquired what be proposed to do with tbe body. When be bad finished tbe gruesome task be bad undertaken be stole Nance’s car and fled to another county, believing that be would succeed in escaping detection, but tbe confession or betrayal of Sims frustrated bis plans and defeated bis purpose.

Tbe court instructed tbe jury correctly as to whether any particular time must elapse before tbe homicide, and after tbe deliberate and premeditated intent to kill has been formed. Tbe cases on this subject are collected in tbe notes to section 4200 of tbe Consolidated Statutes, at p. 1732.

There was evidence which tended to show that tbe prisoner bad done what be bad previously intended to do, for be so expressly stated after tbe crime bad been committed.

We have endeavored to consider and to carefully examine every material phase of this case presented in tbe record and in tbe able and impressive argument of tbe prisoner’s counsel delivered before us, but after all tbis bas been done, and witb an earnest desire to reach tbe very truth of tbe matter, under tbe evidence and tbe law, and witb careful and strict regard for tbe prisoner’s rights, we can but conclude that there was no error in tbe trial of i;be cause.

No error.