STATE v. FOWLER

HIGGINS, Justice.

Each case which comes here is important to the parties involved and receives a careful review of the legal questions presented for decision. However, it is the uniform practice of this Court in every case in which a death sentence has been pronounced to examine and review the record with minute care to the end it may affirmatively appear that all proper safeguards have been vouchsafed the unfortunate accused before his life is taken by the State.

In this case the evidence disclosed that on the morning of November 13, 1965 the defendant and his girlfriend, Ruby Rivers (both under the influence of liquor) were engaged in a fight on the streets of Fremont. As police officer W. B. Braswell appeared, Ruby ran and hid in an automobile in the rear of a grocery store. Officer Braswell arrested both participants and took them to the city jail. No one seems to have been in the jail at the time the officer entered with his prisoners. He locked Ruby in cell No. 1, opened the door to cell No. 2 and ordered the defendant to enter. The defendant refused. Ruby Rivers, a witness for the State, testified:

After Ruby Rivers had completed her testimony, the State called James Sasser, a police officer, for the purpose of corroborating the story told by Ruby Rivers. The defendant objected. The Court overruled the objection. Witness Sasser, for the purpose of corroboration, testified:

Officer Sasser testified, quoting Ruby Rivers, that before firing the fatal shot the defendant "told him he was sorry but he had to do this."

The Court charged "* * * that Ruby Rivers told Deputy Sheriff Sasser * * * that Johnny Ringo snatched it (pistol) out of the holster * * * backed up three or four feet * * * had the gun in his hand * * * and said `I am sorry, I got to do this,' * * * shoved him into the cell * * * held the gun out in front and fired it at that time." The foregoing is the subject of the defendant's Exception No. 78, Assignment of Error Group 5.

A comparison of the testimony of Deputy Sheriff Sasser, quoting Ruby Rivers, and the summary of that evidence in the Court's charge, makes it rather obvious the Court's interruption of Sasser's testimony was to enable it to make a note of what the officer said. If the Court stopped the proceedings for the purpose of making a memorandum of the testimony for use in the charge, the interruption served to emphasize the importance of the testimony. State v. Moore, 262 N.C. 431, 137 S.E.2d 812. The statement "I am sorry, I got to do this" signifies deliberation and a pre-fixed purpose to kill. The trouble is the quotation did not corroborate Ruby Rivers. In fact, it flatly contradicted her evidence. She testified, "Right after the defendant took the gun away from Mr. Braswell and before the shooting, Mr. Braswell said `You've got the gun. Now take it and go.' The defendant did not say anything." A careful check of the record before us fails to disclose that Ruby Rivers, at any time, testified the defendant said "I am sorry, I got to do this," or anything of like import.

Both Ruby Rivers and Officer Sasser testified for the State in the former trial. We have examined the record filed here on the former appeal. Neither Ruby Rivers nor Officer Sasser testified the defendant made the statement quoted in the preceding paragraph or anything similar thereto. The statement came into the case for the first time through the testimony of Officer Sasser, which purported to be for corroboration only. We do not suggest for one moment that Ruby Rivers did not make the statement Officer Sasser attributed to her, but we do say the statement was not in corroboration of anything Ruby Rivers had testified to and hence was not properly admissible in evidence. A review of the record of the former appeal and the record before us now discloses the only essential difference in the State's evidence in the trials is the addition of the "corroborative evidence" of Officer Sasser in the latter. This "corroborative evidence" may account for the difference in the judgments—life imprisonment in the first trial—death in the second.

We are confronted with the question whether the Court, on its own motion, should have withdrawn from the jury the damaging statement Sasser attributed to Ruby Rivers. When Sasser was called by the Solicitor for the purpose of corroborating her testimony, the defendant objected. At the time the Court properly overruled the objection, assuming, of course, that what the officer said would tend to corroborate her testimony. When, however, it became apparent the statement was in contradiction, and not in corroboration, defendant's counsel should have moved to strike. This he did not do. Should not the Court have so acted on its motion and instructed the jury to disregard the testimony?

In passing on the question, we must remember the Court had quoted to the jury the corroborating evidence and had instructed the jurors to consider it if they found it to be corroborative. This Court, in State v. McCoy, 236 N.C. 121, 71 S.E.2d 921 (a capital case) said:

And, in State v. Knight, 248 N.C. 384, 103 S.E.2d 452, this Court said:

The jury got this picture from the evidence of Ruby Rivers, the only eye witness. As the officer, with his prisoners, entered the jail, he locked Ruby in cell No. 1 and ordered the defendant to enter cell No. 2. The defendant refused. A scuffle ensued over the officer's revolver, which the defendant forcibly took from him. The defendant forced the officer into the cell, the officer saying, "You've got the gun, now take it and go", the defendant fired the fatal shot without saying anything. Officer Sasser had Ruby quoting the defendant as saying, immediately before the fatal shot, "I am sorry, I got to do this." The latter describes a fixed and premeditated purpose to kill. Not only did the Court charge the jury to consider Sasser's statement if the jury found it corroborated the witness, but stopped the officer in the recital and then directed him to continue his evidence. If Sasser's evidence needed emphasis, the Court's action served heavily to underscore it. A couple of exceptions inserted in the record at the right place and assignments of error based thereon would have made the task of ordering a new trial very simple, but in the light of the practice in the cases cited and in State v. Herring, 226 N.C. 213, 37 S.E.2d 319, we seem to be required to overlook the formality in a capital case and pick up any errors that appear in the record, whether excepted to and assigned or not. In view of these decisions, we, not without reluctance, hold that the defendant should have a new trial where the rules of evidence are scrupulously observed. The present counsel of record did not participate in the trial. He was appointed to prepare and argue the appeal. The brief and the argument have been helpful to the Court.

New trial.