State v. . Birkman

BbogdeN, J. In arraying tbe contentions of tbe State, tbe trial judge stated to tbe jury: “Tbe State contends that bis conduct afterwards, in failing to provide bis wife a burial, according to tbe customs in civilized and enlightened communities, bis failure and refusal to provide suitable clothing, and to assume a tender attitude toward ber, is evidence from which you may infer, both, that be struck ber, and that at tbe time be entertained towards ber malice, at tbe time be struck ber.” Thereafter, tbe trial judge instructed tbe jury: “Tbe fact that a woman has died and has been sent to South Carolina, under circum *547 stances that may not appeal to you as being proper, is no ground for convicting tbe defendant. Tbat bas no place in tbe trial. You can consider those circumstances in so far as they relate to tbe attitude of tbe defendant toward bis wife, and in so far as you may think it throws light upon what be did to bis wife, if anything.” Tbe uncontradieted evidence was to the effect tbat tbe defendant at tbe time of tbe death of bis wife was totally without financial means to purchase suitable clothing or provide a suitable and proper casket for bis wife. His failure to provide a casket and suitable clothing was used by tbe State not only as evidence of malice, but also as evidence tbat be struck tbe blow which caused tbe death of tbe wife. Tbe defendant denied tbat be struck bis wife, and tbe evidence does not disclose tbat there was any evidence of a blow found upon her body after her death. Tbe declarations, mental attitude or unnatural conduct of an accused may, in proper instances, be submitted to tbe consideration of a jury upon tbe question of guilt. S. v. Brabham, 108 N. C., 793, 13 S. E., 217; S. v. Wilcox, 132 N. C., 1120, 44 S. E., 625; S. v. Lance, 149 N. C., 551, 63 S. E., 198; S. v. Plyler, 153 N. C., 630, 69 S. E., 269; S. v. Atwood, 176 N. C., 704, 97 S. E., 12. However, there seems to be no legal support for tbe theory tbat tbe financial inability of an accused to provide a proper burial is evidence of guilt. If any evidence bad been offered tending to show tbat tbe defendant was financially able to provide a proper and decent burial for bis wife, and neglected and refused to do so, such circumstance might be competent and admissible, at least, upon tbe question of malice; but no such a situation is disclosed in tbe present record, and tbe defendant’s exception is sustained and a new trial awarded. There are certain exceptions to tbe expert testimony relating to tbe force of tbe blow alleged to have been inflicted by tbe defendant. Portions of this testimony lie in tbe twilight zone of legal competency, but as a new trial must be bad, we deem it unnecessary to discuss them. New trial.