State v. . Hawley

WinboRNe, J. The remarks of the solicitor for,the State in concluding his address to the jury on the trial in Superior Court, to which alone exception is directed on this appeal, are to the same effect as those held by this Court in the case S. v. Little, 228 N. C., 417, 45 S. E. (2d), 542, to be calculated to prejudice unduly the defendant in the defense of the charge against him, and on account of which a new trial was ordered. There, as here, the defendant was on trial charged with murder in the first degree. Hence what is said there is appropriate here. In the Little case the Court held that the gravity of the improper remarks of the solicitor called for a correction by instruction of the judge to the jury at some time during the trial regardless of attitude of counsel for defendant as to whether partial correction should or should not be made. And there doubt is expressed as to whether the harmful effects of the remarks could have been removed from the minds of the jury even by full instructions. The remarks of the solicitor here under consideration are calculated even more than in the Little case to prejudice unduly the defendant in the minds of the jury. “The State does not ask for the conviction of a defendant except upon the facts and the law, stripped of all extraneous matter,—the naked facts,” said Walker, J., in S. v. Davenport, 156 N. C., 596, 72 S. E., 7. To find the facts is the sole province and responsibility of the jury. Moreover, what consequences the verdict on the *170 facts may bring to defendant is of no concern to tbe jury. Hence, tbe remarks bere tend to disconcert tbe jury in fairly and freely deliberating upon tbe facts and in arriving at a just and true verdict. Moreover, bere as in tbe Little case it is doubted that tbe barmful effect of tbe remarks of tbe solicitor in appealing for a verdict of murder in tbe first degree could have been removed from tbe minds of tbe jury by full instruction of the trial judge. In S. v. Noland, 85 N. C., 576, speaking of a gross abuse of privilege by counsel, Ruffin,, Jsaid: “After its commission, under tbe circumstances, it admitted of no cure by anything that could be said in tbe charge.” See also Holly v. Holly, 94 N. C., 96. But tbe contention was made in tbe Little case, as it is here, that exception to tbe improper remarks not taken before verdict is not seasonable. Under tbe facts there as bere tbe rule is inapplicable. Ordinarily it is tbe duty of counsel to make timely objection so that tbe judge may correct tbe transgression by instructing the jury. S. v. Suggs, 89 N. C., 527. And, ordinarily, the failure to object before verdict is held to constitute waiver of objection, S. v. Tyson, 133 N. C., 692, 45 S. E., 838. But where, as here, the harmful effect of tbe remarks is such that it may not be removed from the minds of the jury by instruction of the judge, the reason for the rule requiring the objection to be made before tbe verdict does not exist. Therefore, under the facts of this case, as in tbe Little case, the rule requiring exception before verdict is inapplicable. Moreover, the appeals in each of these cases is from a judgment sentencing defendant to death. G. S., 15-187. And it is provided by statute, G. S., 15-194, that “in case of an appeal” from such judgment, “should the Supreme Court find no error in tbe trial,” “such condemned person shall be executed . . . upon tbe third Friday after the filing of the opinion or order of the Supreme Court . . . and it shall be the duty of the Clerk of the Supreme Court ... to notify the warden of the penitentiary of the date of the filing of the opinion or order of such Court.” Thus in case of appeal, it is only after the Supreme Court finds "no error in the trial’’ that the warden of the penitentiary may carry out the mandate of the trial court for the execution of the condemned person. It is noted that the trial of this case in the Superior Court took place before the opinion in the Little case was handed down. And it is significant that though no objection to the remarks was made or exception taken at the time, the record shows that solicitor agrees that the statement of case on appeal, containing exception to bis remarks and assignment of error based thereon, shall constitute the case on appeal. This meets the requirement of an exceptive assignment of error. Rule 21 of Rules of Practice in Supreme Court, 221 N. C., 544. For error indicated, there must be a New trial.