Defendant assigns as error the failure of the trial court to grant his motion for mistrial.
In selecting the jury the original venire was exhausted, and Judge Long ordered
G.S. § 9-11 provides:
The language of G.S. § 9-11 is clear and unambiguous, and its provisions authorize the trial judge to order the summonsing of supplemental jurors in order to insure orderly, uninterrupted, and speedy trials.
This Court is without power to interpolate or superimpose provisions not contained in a clear and unambiguous statute, State ex rel. Utilities Comm. v. Lumbee River Electric Membership Corp., 275 N.C. 250, 166 S.E.2d 663; North Carolina Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643.
In construing statutes dealing with similar subject matter, the statutes must be construed in pari materia and harmonized so as to give effect to each other. State ex rel. Utilities Comm. v. Lumbee River Electric Membership Corp., supra; Becker County Sand & Gravel Co. v. Taylor, 269 N.C. 617, 153 S.E.2d 19.
The procedure of impaneling a jury is not statutory but is an ancient rite still in general use in the courts of this State. It is the final procedure or ceremony in the formation of a jury.
The provisions of G.S. § 9-11 and G.S. § 9-21 are easily harmonized. The requirement in G.S. § 9-21 that the clerk
We have been unable to find any authority in this jurisdiction as to the precise issue here presented. We do find authority from other jurisdictions supporting the general rule that an accused is not prejudiced because he is not furnished a list of persons called as supplemental jurors where it became necessary to summons them after the court had properly excluded jurors from the original venire. 47 Am.Jur.2d, Jury § 162; Demato v. People, 49 Colo. 147, 111 P. 703; State v. McKee, 170 La. 630, 128 So. 658; Makley v. State, 49 Ohio App. 359, 197 N.E. 339.
Instant record shows that defendant failed to move for a continuance in order to review the names of the additional jurors drawn upon order of the trial judge. The record does not reveal that the clerk failed to read over the names of the additional jurors in the presence and hearing of defendant and his counsel before the jury was impaneled. Further, defendant has failed to show any prejudice since the record does not reveal the acceptance of any juror after the exhaustion of his peremptory challenges. To follow defendant's contention would result in a procedure which would impede the orderly dispatch of court business and defeat the primary purpose of our court system: to afford defendants fair and speedy trials.
We find no merit in this assignment of error.
Defendant next assigns as error the action of the trial judge in sustaining the State's objection to cross-examination of Florence Parker and Deputy Sheriff Setliff concerning a shotgun and shotgun shell casing purportedly found at the scene of Vera Parker's death.
On cross-examination of the witness Florence Parker, the following occurred:
The same type question was put to Deputy Sheriff Setliff concerning the shell casing. He had previously answered that he had no personal knowledge of the existence of a shell casing at the scene, but that someone had told him one was there.
Defendant in both instances attempted to establish the existence of the shotgun or shell casing through witnesses who stated they had no personal knowledge concerning the matter. Had the court allowed defendant to elicit this testimony as to what someone other than the witnesses personally knew about the shotgun or the shell casing, it would clearly have been hearsay evidence. 2 Strong's N.C. Index 2d, Criminal Law § 73, p. 572; Stansbury, N.C. Evidence 2d, Hearsay § 138, pp. 335-339.
In any event, the record on appeal does not show what the responses to these questions would have been.
It is well recognized that when a record fails to show what the witness would have testified had he been permitted to answer questions objected to, the exclusion of such testimony is not shown to be prejudicial. This rule applies to questions asked on direct and cross-examination. State v. Fletcher and State v. St. Arnold, 279 N.C. 85,
This assignment of error does not set out the excluded evidence but merely refers to the record page where the asserted error may be discovered. This is not sufficient. State v. Fox, 277 N.C. 1, 175 S.E.2d 561; Rule 19(3), Rules of Practice in the Supreme Court of North Carolina.
This assignment of error is overruled.
By his Fifth Assignment of Error defendant asserts that the trial court erred in allowing the solicitor to further cross-examine defendant concerning an alleged prior conviction after defendant denied having been convicted of the crime. We quote portions of the record pertinent to this contention:
When a defendant in a criminal action elects to take the stand and testify, he is subject to impeachment as other witnesses, including impeachment by cross-examination concerning prior criminal convictions. State v. Williams, 279 N.C. 663, 185 S.E.2d 174; State v. Sheffield, 251 N.C. 309, 111 S.E.2d 195. However, cross-examination as to prior convictions must be made in good faith and be based on information. State v. Heard, 262 N.C. 599, 138 S.E.2d 243; State v. Sheffield, supra.
However, this does not preclude the solicitor from pressing or "sifting the witness" by further cross-examination. State v. Robinson, 272 N.C. 271, 158 S.E.2d 23; State v. King, 224 N.C. 329, 30 S.E.2d 230. The extent of cross-examination rests largely in the discretion of the trial judge. State v. Bumper, 275 N.C. 670, 170 S.E.2d 457; 7 Strong's N.C. Index 2d, Witnesses § 8, p. 703.
The record shows that the solicitor acted in good faith and had information concerning the crime to which his examination was directed. There was no abuse of dicretion on the part of the trial judge in allowing the solicitor to "sift the witness" in light of the evasive and equivocal answers given by the witness.
Although we do not commend the use by the solicitor of defendant's signature on the purported transcript of the guilty plea during his cross-examination of defendant, we are unable to find anything in this assignment of error so material and prejudicial that a different result would likely have been reached had the solicitor not pursued this line of questioning. State v. Temple, 269 N.C. 57, 152 S.E.2d 206.
This assignment of error is overruled.
Defendant assigns as error the denial of his motion for judgment as of nonsuit at the close of the State's evidence and at the close of all the evidence.
Defendant argues that the trial judge should have allowed his motion as to first degree murder since there was not sufficient evidence of premeditation or deliberation.
Premeditation means "thought beforehand for some length of time, however short." State v. Reams, supra; State v. Benson, 183 N.C. 795, 111 S.E. 869.
"Deliberation means that the act is done in cool state of blood. It does not mean brooding over it or reflecting upon it for a week, a day, or an hour, or any appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation." State v. Reams, supra; State v. Benson, supra.
The elements of premeditation and deliberation are not ordinarily susceptible to direct proof, but are inferred from various circumstances, such as ill will, previous difficulty between the parties, or evidence that the killing was done in a vicious and brutal manner. State v. Duboise, supra; State v. Reams, supra; State v. Hamby, 276 N.C. 674, 174 S.E.2d 385; State v. Stanley, 227 N.C. 650, 44 S.E.2d 196; State v. Watson, 222 N.C. 672, 24 S.E.2d 540.
This record is replete with evidence of previous difficulties between defendant and Vera Parker. It also clearly shows the existence of ill will between them. Defendant, who was 32 years old, weighed 216 pounds, and stood six feet two inches in height, savagely and brutually inflicted seventeen separate knife wounds upon the 45-year old Vera Parker. By his own statement. "he cut her until the blade came out of his knife."
There was sufficient substantial evidence to permit a jury to find that after premeditation and deliberation defendant formed a fixed purpose to kill Vera Parker. The trial judge correctly overruled defendant's motion for nonsuit.
Our examination of the entire record reveals nothing which would justify disturbing the verdict and judgment in this case.