This case first came to us as a joint appeal by Roy Lee Fox and Carson McMahan, who had been tried with the other two defendants jointly indicted with them. Neither Roy Lee Fox nor Carson McMahan had testified, yet the confession of each, which implicated the other, had been admitted in evidence. This error necessitated a new trial and, in ordering it, we directed that defendants Roy Lee Fox and Carson McMahan be tried separately unless the State relinquished their confessions. State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502.
Upon the second trial, as in the first, all the evidence tended to show: Defendant and the three other persons named in each indictment had conspired to break and enter, during the night time, the dwelling occupied by Mr. and Mrs. Lunsford for the purpose of robbing Mr. Lunsford of his billfold. In furtherance of the conspiracy, defendant accoutered Donald and Arrlie for the burglary, drove them to the locale, and gave Donald the pistol with which he thereafter shot Mrs. Lunsford during the attempt to rob Mr. Lunsford. While Donald
Defendant's first two assignments of error are that the trial judge erred (1) in "allowing" defendant to be retried upon the two original indictments in which he and three others were jointly charged with first-degree murder and burglary; and (2) in consolidating the two charges against defendant for trial. It is obvious, however, that the nature of the case dictated this procedure.
When a murder is "committed in the perpetration or attempt to perpetrate any * * * robbery, burglary or other felony," G.S. § 14-17 declares it murder in the first degree. In those instances the law presumes premeditation and deliberation, and the State is not put to further proof of either. State v. Bunton, 247 N.C. 510, 101 S.E.2d 454; State v. Mays, 225 N.C. 486, 35 S.E.2d 494. Furthermore, when a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree. On this evidence Roy Lee Fox was not only a co-conspirator with Arrlie and Donald Fox; he was constructively present aiding and abetting in the two crimes charged and, therefore, a principal. State v. Sellers, 266 N.C. 734, 147 S.E.2d 225; State v. Maynard, 247 N.C. 462, 101 S.E.2d 340; State v. Green, 207 N.C. 369, 177 S.E. 120; Lindsey v. State, 201 Ark. 87, 143 S.W.2d 573; Clernt v. State, 109 Neb. 628, 192 N.W. 209; 77 C.J.S. Robbery § 32 (1952). See State v. Bell, 205 N.C. 225, 171 S.E. 50.
In each of the two bills upon which defendant was tried it was entirely proper to name the four persons who had conspired to rob Mr. Lunsford even though no conspiracy was expressly averred. State v. Maynard, supra. However, since Roy Lee Fox himself did not enter the Lunsford home and was not actually present when Mrs. Lunsford was killed, the State was required to prove that he had conspired with Arrlie and Donald Fox who actually committed the burglary and murder.
Defendant's argument that it was error to retry defendant on the original indictment is that "by so doing the court allowed evidence to be presented to the grand jury as to codefendants implicating the defendant thereby taking from him one of the legally required steps looking toward the second trial." The statement is puerile. Equally so is the statement that when the court consolidated the charges of murder and burglary, two offenses which grew out of one continuous criminal episode, the court "thereby compounded the original biased advantage that the State was allowed to take in the matter of the evidence that could be presented against the codefendants who were not on trial." When two or more indictments are founded on one criminal transaction G.S. § 15-152 contemplates that the court will consolidate them for trial. State v. Arsad, 269 N.C. 184, 152 S.E.2d 99; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506; State v. White, 256 N.C. 244, 123 S.E.2d 483. In this case the facts required to convict defendant of murder would necessarily have convicted him of the burglary charged. For the judge to have put the State to two separate trials would have been unthinkable.
The third assignment of error is that the court failed "to allow challenges for cause on jurors who were prejudiced as a result of knowledge admitted regarding adverse publicity about the defendant." This assignment of error, in complete disregard of our rules, does not specifically set out the jurors "knowledge admitted" upon which the alleged error is predicated. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416. The assignment refers to pages 30-34 of the record, where a portion of the voir dire examination of three prospective jurors is set out. After the court denied defendant's challenges for cause his counsel
Defendant's case on appeal does not disclose whether, after he had exhausted his peremptory challenges, he unsuccessfully attempted to challenge an additional juror. Because of this inconclusiveness we read the 704-page transcript of the proceedings incident to the selection of the jury. It revealed that when twelve jurors had been selected defendant had exhausted only ten of his fourteen peremptory challenges and that, in response to a direct question from the judge, defendant stated he was "satisfied with them (the jurors) to hear his case." Thereafter three alternates were selected. In the selection of the first, defendant used his four unexpended challenges and one other. Before the second was seated he had used his two peremptory challenges, but he did not challenge the juror who was finally sworn as the second alternate. In the selection of the third alternate, defendant used only one peremptory challenge.
Defendant's fourth assignment of error is that the court failed "to allow additional peremptory challenges for the alternate jurors and the defendant did exhaust his challenges at the time of the trial." In his brief, defendant makes this statement: "The Court over the objection of the defendant (R p 34) ruled that the defendant would be allowed two challenges for ALL alternate jurors selected not two EACH as the statute reads and intended." Both the record and the certified transcript belie this statement. After defendant had exercised his first peremptory challenge during the selection of the second alternate the court said to counsel: "So there will be no misunderstanding I am going to hold that there will be two challenges as to each alternate because I don't know now whether there will be two or three alternates." This ruling was in conformity with G.S. § 9-18 which provides that in the selection of alternate jurors after the regular jury has been impaneled, "Each party shall be entitled to two peremptory challenges as to each such alternate juror, in addition to any unexpended challenges the party may have left after the selection of the regular trial panel." Clearly the court did not deprive defendant of any peremptory challenge to which he was entitled, nor was defendant forced to accept any juror whom he had challenged peremptorily or for cause.
"Numerous decisions of this Court, e.g., State v. Dixon, 215 N.C. 438, 440, 2 S.E.2d 371, 372, hold that a defendant has not been prejudiced by the acceptance of a juror who is challenged for cause and the cause is disallowed unless he exhausts his peremptory challenges before the panel is completed. Other decisions, e.g., Carter v. King, 174 N.C. 549, 94 S.E. 4, hold that a defendant, in order to preserve his exception to the court's denial of a challenge for cause, must (1) exhaust his peremptory challenges and (2) thereafter assert his right to challenge peremptorily an additional juror. These rulings are plainly and succinctly summarized in the first headnote in Carter v. King, 174 N.C. 549, 94 S.E. 4, which epitomizes the decision in that case, as follows: `Where the court has refused to stand aside a juror challenged for cause, and the party has then peremptorily challenged him, in order to get the benefit of his exception he must exhaust his remaining peremptory challenges, and then challenge another juror peremptorily to show his dissatisfaction with the jury, and except to the refusal of the court to allow it.'"
We find nothing in the case on appeal or transcript which suggests that defendant was not tried by a fair and impartial jury. Of the twelve jurors selected on the regular panel six were opposed to capital punishment; one was not asked his views; four "believed in" capital punishment only in "some cases." Only one stated without equivocation that he "believed in" capital punishment. Of the two alternates who were substituted for regular jurors, one did not believe in capital punishment and the other believed in it only "in some cases."
Defendant's fifth, sixth, and seventh assignments are that the court erred in admitting in evidence the transcript of the testimony given by Mr. Lunsford at the first trial (S-33), and in allowing it to be read to the jury by the special prosecutor, Mr. Swain. Defendant's objection to this transcript was "to the introduction or reading of either all or part of it." This was a broadside objection to the entire transcript. Upon such an objection it was properly admitted if any part of it was competent. Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807; Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19; 1 Strong N.C. Index 2d Appeal and Error § 30 (1967). It is well settled that the official stenographic report of testimony given at a former trial by a witness who has since died may be introduced in evidence upon a subsequent trial of the same cause upon proof of its authenticity and accuracy. State v. Prince, 270 N.C. 769, 154 S.E.2d 897; Settee v. Electric Railway, 171 N.C. 440, 88 S.E. 734; Cooper v. R. R., 170 N.C. 490, 87 S.E. 322; Stansbury N.C. Evidence § 145 (2d ed. 1963); Annot., 11 A. L.R.2d 30, 58, 75.
The transcript of Lunsford's testimony was properly received in evidence, and the judge specifically admitted it "subject to the competency, relevancy and materiality" of specific questions and answers. Before it was read to the jury counsel for defendant and the State went through it and marked certain portions thereof which were not to be read. Presumably they agreed that these portions were either "irrelevant or incompetent." In any event, defendant interposed no objection to specific questions or answers in the transcript. This he was required to do if he would challenge their competency. Grandy v. Walker, supra. Nor did he object that specific questions and answers had been deleted. The entire transcript was offered and defendant, although reserving his right to object to the whole, concurred in the omissions. Allen v. Allen, 213 N.C. 264, 195 S.E. 801.
The assignment of error that the court permitted the special prosecutor to read the transcript instead of the court reporter is unsupported by any exception taken during the trial. The transcript reveals that when the judge asked who would read the stenographic report of Mr. Lunsford's testimony to the jury Mr. Swain said, "* * * [P]erhaps the simplest way would be to have me to read it, read the whole thing." The court's reply was, "All right," and defendant made no objection. An assignment of error which is not supported by an exception previously noted in the case on appeal presents no question of law for this Court to decide. Bulman v. Baptist Convention, 248 N.C. 392, 103 S.E.2d 487; Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634; State v. Hudler, 265 N.C. 382, 144 S.E.2d 50. However, the record affirmatively shows that no prejudice resulted to the defendant from Mr. Swain's reading of the transcript. On his own copy the judge followed the prosecutor's reading of Lunsford's testimony very closely. If Mr. Swain omitted a single word or stumbled in his reading—as he did several times when (he said) his "eyes merged"—the court immediately admonished, "Watch your words here; read exactly what it says." In every such instance Mr. Swain reread the muffed line. Assignments of error 5, 6, and 7 are without merit.
Although the foregoing three assignments present no question for our consideration, for the reasons hereinafter set out, we have deemed it appropriate to consider every assignment of error which counsel has attempted to make. The description of Mr. Lunsford's wounds given by Dr. John C. Young, who saw him at the hospital after his wife was shot, was competent not only to corroborate the testimony of Mr. Lunsford but also to show the felonious purpose of the two men who had inflicted them after invading the Lunsford home. State v. Payne, 213 N.C. 719, 197 S.E. 573. The testimony of Officer McDevitt and Sheriff Clay (the subject of Assignment 12) as to statements made to them by Mr. Lunsford on the night Mrs. Lunsford was murdered were likewise competent to corroborate the testimony of Mr. Lunsford, and the court specifically limited them to that purpose. The record-page reference in Assignment 9 gives us no more clue in our search for error than did the assignment itself. However, the rubber mask, the pistols, the coats, the hat, the piece of cloth torn from one of the coats, the white handkerchief, and the rifle —articles which the investigating officers found either on the floor on the Lunsford kitchen or in the buried tow sack to which Arrlie Fox led them—were competent to identify the perpetrators of the crime, as well as to show a design and plan. State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Brown, 204 N.C. 392, 168 S.E. 532. "The evidence tied these items into the offense charged and made them properly admissible." State v. Stroud, 254 N.C. 765, 767, 119 S.E.2d 907, 909. Accord, Stansbury, N.C. Evidence § 118 (2d ed. 1963).
Assignments 8, 9, and 12 are overruled. So also is Assignment 10, which charges that the court erred in failing to allow defendant's motion to sequester the State's witnesses. The motion of defendant for the sequestration of the witnesses was addressed to the discretion of the court, and no suggestion of abuse appears upon the record. State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506.
Assignment No. 21 is that the court erred in allowing Sheriff Clay to testify that the arrest sheet (a record of his office) showed that defendant was arrested at 4:30 p. m. on Friday, 13 November 1964. This evidence was elicited during the State's attempt to establish the time Sheriff Clay first talked to defendant. When he did not recall the exact time, Mr. Swain
In his brief defendant specifically abandons assignments of error 11, 13, 15, 19, 20, 22, and 23.
Assignments 14, 16, and 17 relate to defendant's confession. Assignments 14 and 16 are that its admission was error "in the light of the arrest of his family and other circumstances of his confinement" and because it "was unsigned and not verified by him in any way." Assignment 17 is that it was error to allow in evidence "a paper writing purporting to be the confession of Roy Lee Fox when the best evidence would have been an alleged recording which was not produced by the State."
In his brief defendant says, "* * * [T]he judge should not have made the findings of fact as he did at the time the confession was allowed in evidence." Apparently defendant attacks the admissibility of his confession upon the assumption that the judge was bound by his statements on voir dire and required to disregard any conflicting testimony given by law enforcement officers or others. This, of course, is not the law. State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868; State v. Logner, 266 N.C. 238, 145 S.E.2d 867. When the State offers a confession in a criminal trial and defendant objects, the competency of the confession must be determined by the trial judge in a preliminary inquiry in the absence of the jury. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481. The trial judge hears the evidence, observes the demeanor of the witnesses, and resolves the question. State v. Barber, 268 N.C. 509, 151 S.E.2d 51. His findings as to the voluntariness of the confession, and any other facts which determine whether it meets the requirements for admissibility, are conclusive if they are supported by competent evidence in the record. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344; State v. Keith, 266 N.C. 263, 145 S.E.2d 841.
On defendant's first trial the judge failed to make any finding with reference to the time defendant requested the jailer to call an attorney (Mr. Jackson) for him. In sending the case back for a retrial we said: "If Roy voluntarily made the statement (S-42), or the earlier one which was not transcribed, and thereafter requested counsel for the first time, he was not deprived of his Sixth Amendment right to counsel. If, however, after he had requested an attorney, and before he was given an opportunity to confer with him, officers continued to interrogate Roy, any incriminating statement thus elicited cannot be received in evidence against him. The ruling upon the admissibility of any statement which Roy may have made must await the findings of material facts to be made by the judge at the next trial." State v. Fox, supra 274 N.C. at 295, 163 S.E.2d at 505. These findings have now been made, and they establish that defendant first requested counsel after he had made a confession to Sheriff Clay on the fourteenth floor of the jail and after he had left the sheriff's office where he had made and recorded the same inculpatory statements. Other findings by the judge establish that, prior to making his confession, defendant was fully advised of his constitutional rights as they were then understood.
Both defendant's confession and his first trial antedated the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (13 June 1966). It was held in Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (2 June 1969), that
A confession is generally defined as an acknowledgment in express words by the accused in a criminal case of his guilt of the crime charged or of some essential part of it. State v. Hamer, 240 N.C. 85, 81 S.E.2d 193. "[I]t may be oral or written in whole or in part; and there is no requirement that an oral confession be reduced to writing or that the oral statement, after transcription by another, be signed by the accused." 23 C.J.S. Criminal Law § 816, p. 154 (1961). Accord, State v. Clyburn, supra.
Defendant's confession, which was admitted in evidence, was the oral statement which he made to the sheriff in the jail and again in the sheriff's office. The transcription of the recording made during defendant's second statement to the sheriff (S-42)—which defendant never signed— was admitted in evidence solely for the purpose of corroborating the sheriff's testimony as to what defendant had said to him. The sheriff testified that this transcription, which had been transcribed by the court reporter, Mrs. Israel, was "an exact copy of the words which were spoken between (himself) and Roy Lee Fox on November 14, 1964 and as recorded."
The transcript was clearly competent to corroborate Sheriff Clay's statement of defendant's confession. In any event, however, its contents were merely repetitive of the sheriff's testimony, and no prejudice could have resulted to defendant from its admission. The case of State v. Walker, 269 N.C. 135, 152 S.E.2d 133, upon which he relies "as the leading case in this State on the point," is not pertinent. In Walker, the State introduced a typewritten statement narrating an investigating officer's interpretation of his interview with the defendant. The statement recited that the defendant had read it before signing it. However, on voir dire, the officer himself testified that the defendant not only had not read it, but he had refused to read it and had no knowledge of its contents. In awarding a new trial for the error of its admission, this Court said: "There is a sharp difference between reading from a transcript which, according to sworn testimony, records the exact words used by an accused, and reading a memorandum that purports to be an interpretative narration of what the officer understood to be the purport of statements made by the accused." Id. at 141, 152 S.E.2d at 138.
Defendant's contention that S-42 was inadmissible because "the best evidence would have been the alleged recording" is likewise without substance. "The best evidence rule applies only where the contents or terms of a document are in question." Stansbury, N.C. Evidence § 191 (2d ed. 1963). In State v. Ray, 209 N.C. 772, 184 S.E. 836, parol evidence was admitted to establish the contents of a freight car. The defendant objected to parol evidence because the records of the railroad company showed its contents. On appeal the Court said: "The making of a record did not prohibit a witness who loaded the car and saw what went into it, from testifying as to its contents." Id. at 777, 184 S.E. at 839. As previously noted, the transcript was not offered as defendant's confession but as corroboration of the sheriff's testimony as to his conversation with defendant. The fact that there was a recording of it did not prevent the sheriff from testifying as to what was said. The recording—upon proper authentication— would have been admissible. Had defendant requested its production undoubtedly the court would have required the State to produce it. However, defendant did not request the recording, nor did he base his objection to the admission of S-42 upon the ground he now asserts. Indeed, at the time he stated no reason for his objection. Assignments of error 14, 16, and 17 are overruled.
We note that defendant has assigned no error to the charge of the court and that it was not included in the case on appeal. It is presumed, therefore, that the court correctly instructed the jury on every phase of the case, both with respect to the law and the evidence. State v. Hines, 266 N.C. 1, 145 S.E.2d 363.
Because this is defendant's second appeal from a conviction upon two indictments for capital crimes which occurred almost six years ago we have examined the record of the trial below with great care. Our task was hampered and made onerous by an inaccurate record and a carelessly prepared case on appeal. Appellant's counsel, whose responsibility it is to make certain that all essential parts of the record are filed in this Court, that the case on appeal is in compliance with our rules, and that it presents a clear and accurate account of the proceedings below, failed in this duty. Omitted from the record were the bill of indictment in case No. 24-856 and the verdicts in both cases Nos. 24-856 and 25-854, "essential parts of the transcript record in a criminal action brought to this Court." State v. Stubbs, 265 N.C. 420, 423, 144 S.E.2d 262, 265. The written orders made throughout the trial and the judgments from which defendant appealed were not shown to have been signed by the judge. Inter alia, we could not tell from the case on appeal whether the voir dire held to determine the competency of defendant's confession was conducted out of the presence of the jury.
The Attorney General, in two addenda, supplied the omissions of the essential portions of the record so that we might review the case. He also secured a certified transcript of the stenographic report of the trial in order to determine the order in which proceedings were had and when they were out of the presence of the jury. At the instance of defendant's counsel and with the consent of the Attorney General, another addendum was filed to add assignments of error which counsel had omitted. These addenda, of course, increased the
Although the primary duty of preparing and docketing a true and adequate transcript of the record and case on appeal in a criminal case rests upon defense counsel, G.S. § 1-282, G.S. § 15-180, it is the duty of the solicitor to scrutinize the copy which appellant serves upon him. If it contains omissions, errors, or misleading juxtapositions it is the solicitor's responsibility to file exceptions or a counter case within his allotted time. He tried the case before the jury, and he is the State's only representative who is in position to evaluate the appellant's statement of the case on appeal. The Attorney General, who must defend the case in the Appellate Division, is dependent upon the solicitor for a valid record of the trial below. When the solicitor accepts the defendant's case on appeal and it is certified to the Appellate Division, it imports verity and the appellate court is bound by the record as certified. State v. Miller, 214 N.C. 317, 199 S.E. 89; 1 N.C. Index 2d Appeal and Error § 42; 3 N.C. Index 2d Criminal Law § 160 (1967). It costs the State and profits a solicitor nothing if, after spending ten days in a trial such as this, we order a new trial for an error appearing in the transcript when none actually occurred. We again call the attention of defense counsel to our admonition in State v. Benton, supra 276 N.C. at 650, 174 S.E.2d 793. At the same time we remind the solicitors that their obligation to a case does not end when the judge pronounces sentence. Their duty includes policing the case on appeal. This, of course, necessitates the expenditure of the time and effort required to make a careful and painstaking examination of it and to file exceptions or counter case if either is necessary to provide a correct record and a case on appeal which truly and intelligibly sets out the proceedings as they occurred. Only upon such a record can the Attorney General and the Appellate Division do justice to the State and to the defendant.
In the trial below we find
MOORE, J., did not participate in the consideration or decision of this case.