State v. . Stanley

Seawell, J. In view of the voluminous record and the number of exceptions taken upon the trial it is necessary to confine discussion to those objections which counsel for appellant have urged upon us as being of a more serious nature. However, it must be understood that those exceptions not discussed here or noted in the foregoing statement have received careful attention and have not been considered of sufficient merit to affect the result of the trial. In limine it is proper to say that the demurrers to the evidence, including the motion to nonsuit the graver charge of first degree murder, were properly overruled. The evidence of the guilt of defendant is plenary; and there are several phases of the evidence sufficient to give rise to the inference of deliberation and premeditation. If we pass over the inference that the defendant nursed his grievance of the night before and vengefully renewed it the morning after, and also inference that he deliberately planned the opportunity and set the stage for the tragedy, all of which point to deliberation and premeditation, the vicious, ferocious, and brutal manner of the slaying,— by- two slashes of the razor which almost decapitated the victim, — engenders an inference of premeditation and deliberation distinct from the presumption of second degree murder by the intentional use of a deadly weapon in the killing and not merged therein. S. v. Artis, ante, 371; *655 S. v. Taylor, 213 N. C., 521, 523, 196 S. E., 832; S. v. Hunt, 134 N. C., 684, 689, 47 S. E., 49; S. v. Bynum, 175 N. C., 777, 783, 95 S. E., 101. From S. v. Bynum, supra, we quote: “If this evidence satisfied the jury that the prisoner committed the homicide, the attendant circumstances of the killing by cutting her throat from ear to ear, beating up her head, and breaking her pose with a club, the wiping of the knife-blade in the grass and the hands with buds and leaves, if believed, was evidence from which the jury could infer that the killing was deliberate and purposeful, and not a sudden access of rage and such premeditation, if only for a moment, is sufficient to make it murder in the first degree.” The defendant moved to quash the indictment because of the fact that he was not present when it was returned by the grand jury in a body and read in open court. Eelative to indictment and trial there are two things guaranteed by the Constitution to one accused of crime; information as to the nature of the crime of which he is accused, and confrontation of his accusers. One of these requirements is satisfied by his arraignment, and if by plea of not guilty he puts himself upon his country the ensuing trial by jury in which he may confront and examine the witnesses, satisfies the other. The exception seems to point to one or the other of these rights, neither of which was denied him. In a capital case the indictment is still required to be returned into Open court by the grand jury in a body, or a majority of them. G. S., 15-141. In other cases it may be returned by the foreman. It may be assumed that the practice has been preserved in the'case of capital felonies as an additional guaranty that the requisites to its validity have been duly observed. The indictment and its return are no part of the trial. The fallacy of the argument that it was in any way necessary that the defendant be present at once appears when we understand that the indictment is often found before the accused is even apprehended. It is not the practice to have defendant present although he may be in custody. Other challenges to the validity of the trial which merit further discussion are: Objection to the use of photographs of the body and the scene of the tragedy; expert opinion evidence as to whether the woman was standing or recumbent when the wounds were inflicted upon her; testimony of the embalmer as to the nature and extent of the wounds found upon the body; and exception to the order substituting the 13th juror as one of the original twelve in the absence of counsel. We discuss these in that order. The witness testifying said that the photographs accurately represented the position and condition of the body when found and its environment. *656 They were then permitted to be used to illustrate the testimony, with the caution that they were not substantive evidence. The objection here is based on the fact that the photographs were not made by the person testifying. In this, as in most other jurisdictions, it is not necessary that a photograph used only to illustrate the evidence he made by the witness testifying “providing he can testify to its adequacy as a representation of the subject it purports to illustrate.” Stansbury, North Carolina Evidence, Sec. 34; Bane v. R. R., 171 N. C., 328, 88 S. E., 477; Roane v. McCoy, 182 N. C., 727, 109 S. E., 842; Gates v. McCormick, 176 N. C., 640, 97 S. E., 626; Hagaman v. Bernhardt, 162 N. C., 381, 78 S. E., 209. Reference to the reasons given by Dr. Norfleet (see statement, supra) for his conclusion that Shirley Stanley was lying down when th'e wounds were inflicted upon her convincingly bring the subject within the rule of expert opinion, based upon professional knowledge of the behavior of the human body, its organs and functions, particularly the blood circulatory system under invasion by wounds such as were found. Similar expert testimony has been approved in George v. R. R., 215 N. C., 773, 3 S. E. (2d), 286. Expert medical opinion has been often resorted to, to show the position of the body when it received a lethal wound. Admission of the evidence of the embaimer presents no prejudicial error. The statement of the embalmer was to an observed fact which did not require expert testimony. The objection to the substitution of the alternate or 13th juror as a member of the panel is confined to the fact that it was done in the absence of defendant’s counsel. The substitution was made in open court; but it had recessed for the afternoon and was called back‘in session. The defendant was present. The record shows that the emergency, or condition requiring the substitution, arose after defendant’s counsel had left the court upon the afternoon adjournment and was too far away to be available. No fault is attached to the attorney because of his absence; the question is whether any constitutional right of the defendant was invaded by the action of the court in the absence of counsel; or that it was attended with prejudicial error. Rule 27 of Superior Court Practice relieves the court from sending for counsel when the case is called in a regular session. The corollary is that the court violates no duty by proceeding without counsel when it does not appear that the particular matter, because of some unusual reason, demands his presence. S. v. Denton, 154 N. C., 641, 70 S. E., 839. Perhaps an “unusual reason” might be afterward discovered in some prejudicial action by the judge which might have been resisted by counsel if present. In the instant case, however, there is no such sug- *657 gestión. In fact tbe 13tb juror bad been passed by both tbe solicitor and tbe counsel for defendant and was qualified to take bis seat wben tbe trial judge, in tbe exercise of bis discretion conferred by tbe statute, G. S., 9-21, found it to be necessary. Under these circumstances we are unable to see that tbe defendant suffered deprivation of any fundamental right by action in tbe absence of counsel or that be was prejudiced in any way in tbe trial of his cause. S. v. Dalton, 206 N. C., 507, 174 S. E., 422; S. v. Broom, 222 N. C., 324, 22 S. E. (2d), 926. As stated, we have carefully examined tbe record, considering all of tbe exceptions to tbe trial, and we find No error.