State v. Gore, 207 N.C. 618 (1935)

Jan. 28, 1935 · Supreme Court of North Carolina
207 N.C. 618


(Filed 28 January, 1935.)

1. Criminal Law G r — Held.: Credibility ol witness was impeached in this case, and evidence corroborating bis testimony was competent.

Defendant was charged with being an accessory before the fact .of murder, and pleaded not guilty. Upon the trial the perpetrator of the crime testified that he killed deceased because of the promises and inducements of defendant. Defendant cross-examined the witness and sought to impeach his character: EelcL, certain written and oral statements made by the witness to others prior to the trial were competent as tending to corroborate his testimony, the credibility of the witness having been challenged by the plea of not guilty, the cross-examination, and the evidence of his bad character.

2. Criminal Daw G u—

Evidence of the circumstances under which a witness had made statements, competent upon the trial as corroborative of his testimony, is properly admitted to enable the jury to determine the weight to be given the statements upon the basis of whether they were voluntary or were obtained by coercion or duress.

3. Homicide G d: Criminal Daw G r—

Defendant was charged with being an accessory before the fact of murder in procuring the murder of deceased: Held,, testimony of a quarrel between defendant and his wife over the attentions paid defendant’s wife by deceased was competent to show motive and as corroborative of the testimony of the perpetrator of the crime that defendant stated this was his motive.

4. Criminal Daw D e—

Error, if any, in the admission of a note written to defendant by his wife, is held, cured by her testimony upon the trial in his behalf, the note tending to discredit her testimony on the trial.

5. Criminal Daw G r—

The cross-examination of defendant in this case held well within the latitude allowed by law.

6. Criminal Daw I J—

The unsupported testimony of an accomplice is sufficient to overrule a motion for nonsuit, since such testimony is sufficient to sustain a verdict of guilty.

7. Criminal Daw I g — Instructions in this case held sufficiently full.

An exception based upon the court’s failure to define an “accessory before the fact” in a prosecution of defendant for being an accessory before the fact of murder, cannot be sustained where the record shows the court read to the jury the indictment which fully described the offense, it being the duty of defendant, if he desires more elaborate instruction, to aptly tender a request therefor.

*6198. Indictment E c—

In a prosecution of defendant for being an accessory before tbe fact of murder, variance of a few days between tbe indictment and proof as to tbe day tbe murder was committed is not fatal, O. S., 4625.'

Appeal from Karris, J., at June Term, 1934, of New Hanovee.

No error.

Tbe defendant was tried and convicted upon tbe following bill of indictment:

“Tbe jurors for tbe State upon tbeir oatb present, tbat Faison Gore, late of tbe county of New Hanover, on 3 May, 1934, witb force and arms, at and in tbe county aforesaid, did unlawfully and wilfully, feloniously be and become an accessory before tbe fact to tbe murder of Karl Hayduck, by counseling, procuring, or commanding Ben Johnson to commit a felony, to wit r kill and murder Karl Hayduck, and in confirmation of said counseling, procuring, or commanding of said Faison Gore, be, tbe said Ben Johnson, on or about 3 May, did unlawfully, wil-fully, feloniously, and witb malice aforethought, kill and murder tbe said Karl Hayduck, against tbe form of statute in such case made and provided against tbe peace and dignity of tbe State.

“Woodus Kellum, Solicitor

From judgment pronounced on tbe verdict tbat be be imprisoned in tbe State prison for tbe term of bis natural life, tbe defendant appealed to tbe Supreme Court, assigning errors.

Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.

R. M. Kermon for defendant appellant.

Schenck, J.

Tbe basis of seven of the defendant’s exceptive assignments of error is tbe admission of certain written statements and certain oral statements made by tbe State’s principal witness to others at various times prior to tbe trial of this cause. The statements were admitted for, and only for, tbe purpose of corroboration, and tbe judge so told tbe jury at tbe time of tbeir admission. Tbe evidence of this witness, upon which tbe State largely relied, was to tbe effect tbat be, Ben Johnson, struck tbe fatal blow tbat killed tbe deceased, Karl Hayduck, and be did so because of promises and inducements held out to him by tbe defendant Faison Gore. We have carefully examined these statements and think they all tend to corroborate tbe testimony of Johnson. We cannot agree witb tbe position taken in tbe defendant’s brief tbat tbe corroborating evidence was inadmissible because tbe witness Ben Johnson bad not been impeached. Tbe defendant, having-pleaded not guilty, tbe very nature of tbe circumstances challenged tbe *620testimony of tbe witness to tbe effect that tbe defendant procured him, tbe witness, to kill tbe deceased; and also tbe cross-examination of tbe witness was an attack upon and. an impeachment of bis testimony in that it sought to show that such testimony was false, and that tbe witness bad been frequently tried and convicted in various criminal courts and was therefore a man of bad character, whose testimony should not be given credence. S. v. Parish, 79 N. C., 610; S. v. Melvin, 194 N. C., 394.

Tbe evidence of tbe circumstances under which tbe corroborative statements were made, to which tbe defendant excepted, was properly admitted in order to enable tbe jury to determine tbe weight that should be given to such statements; since if they were obtained by coercion or duress they might carry but little if any force, but if given freely and voluntarily, they might carry considerable force. Tbe admission of such evidence was logical, sensible, and did justice to all concerned.

Tbe exception to tbe evidence tending to show a quarrel between tbe defendant and bis wife is untenable, as such evidence was competent to show both motive for tbe crime charged and to corroborate tbe witness Ben Johnson, who testified that tbe defendant told him that tbe deceased was “going with bis wife” and be “didn’t like it,” and gave this as one of tbe reasons for wanting him “to knock him out.”

If there was error in tbe admission of tbe note written by tbe wife of tbe defendant to him while in jail, to which tbe defendant excepted, such error was cured when tbe wife went upon tbe stand as a witness in her husband’s behalf and at bis behest and admitted that she wrote tbe letter, since it tended to discredit her by showing that she proposed to make her testimony agree with bis. Witness this clause: “Honey, what time did you tell them so I can tell tbe same thing. Let me know all you told.”

Those portions of tbe cross-examination of tbe defendant to which exceptions were lodged, in our opinion are well within tbe latitude allowed on such examinations, -as tbe reason for tbe search for Hayduck and tbe manner of such search were proper to be considered by tbe jury; and especially was this so in tbe light of tbe fact that tbe defendant directed tbe search and suggested that one Mazur look behind tbe toilet where tbe deceased was found wounded and unconscious.

Tbe motion for nonsuit was properly denied as tbe testimony of Ben Johnson alone was sufficient to- carry tbe case to tbe jury. It has been repeatedly held by this Court that tbe unsupported testimony of an accomplice, while it should be received with caution, if it produces convincing proof of tbe defendant’s guilt is sufficient to sustain a conviction. S. v. Ashburn, 187 N. C., 717 (728), and cases there cited.

*621Tbe defendant excepted to tbe charge for that “tbe court failed to charge tbe jury what constituted ‘an accessory before tbe fact/ ” and “failed to charge tbe jury as to tbe law applicable to ‘an accessory before tbe fact.’ ” Tbe court read tbe bill of indictment to tbe jury, including tbe following: “That Faison Gore ... did unlawfully and wilfully, feloniously be and become an accessory before tbe fact of tbe murder of Karl Hayduck, by counseling, procuring, or commanding Ben Johnson to commit a felony, to wit: kill and murder Karl ITayduck, . . .” Tbe description of tbe offense contained in tbe bill is full and complete and needs no explanation to be understood. Tbe charge is in compliance with C. S., 564. If tbe defendant desired more specific and elaborate instructions or explanations be should have submitted appropriate prayers. S. v. McLamb, 203 N. C., 442; S. v. O’Neal, 187 N. C., 22, and cases there cited.

Tbe defendant’s motion for arrest of judgment for that tbe bill of indictment charges that tbe murder of Karl Hayduck was committed on 3 May, 1934, when all of tbe evidence tended to show that it was committed on 29 April was properly denied, since “time is not of tbe essence of tbe offense” charged. C. S., 4625.

A perusal of tbe record leads us to tbe conclusion that tbe case has been carefully tried in conformity with tbe practice and authorities in this jurisdiction, and tbe verdict and judgment will therefore be upheld.

No error.