State v. Haynes , 276 N.C. 150 ( 1970 )

171 S.E.2d 435 (1970) 276 N.C. 150

STATE of North Carolina
v.
George HAYNES.

No. 46.

Supreme Court of North Carolina.

January 6, 1970.

Robert Morgan, Atty. Gen., Bernard A. Harrell, Asst. Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.

Everett L. Henry, Lumberton, W. Earl Britt, Fairmont, for defendant.

HIGGINS, Justice.

The record discloses the defendant, at the conclusion of his trial, made eleven assignments of error. However, in the brief filed here, his careful and faithful attorneys have discussed only three questions of law which are decisive of this appeal. Only questions 1 and 2 require discussion. The third involves a formal objection—the refusal of the court to set aside the verdict.

The defendant's counsel place their main reliance for a new trial on the ground of alleged error in admitting in evidence the defendant's confession. At the time the State offered the confession the defendant objected, whereupon Judge Hall, in the absence of the jury, conducted a voir dire examination. The scope of the inquiry was broad and the evidence introduced was in detail. State's witnesses Sheriff Garner, Deputy Sheriff Poole of Charles County, Maryland, and Deputy Sheriff Stone of Robeson County, North Carolina, testified that full and complete warnings of the defendant's rights were given before any questions were asked. The defendant, in his testimony, admitted the warnings were given, but contended that at the time he made the statements, he had been drinking heavily, taking drugs, and did not fully appreciate his situation. He further testified that Deputy Sheriff Poole agreed to go to North Carolina and testify for him; that Deputy Sheriff Stone told him that prisoners in North Carolina were permitted to avail themselves of a work release program and were paid during the time they were serving sentences.

Judge Hall heard the evidence, found the facts, and concluded therefrom the defendant's admissions were freely, voluntarily and understandingly made without any inducement or coercion. The evidence fully supports the findings. In fact, before any questions were asked, and immediately after arrest when the officers emerged from the restroom, and in the presence of the defendant's brother, the defendant said this to him: "This time they have gotten me for more than jailbreaking." The confession was properly admissible in evidence. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Childs, 269 N.C. 307, 152 S.E.2d 453; State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344.

The defendant's second objection to the trial involves the following instruction to the jury: "* * * (I further instruct that it is also murder in the first degree where the killing is done in the commission or the attempted commission of a robbery or other felony. * * * The unlawful and felonious and willful killing of a human being committed in the perpetration or attempt to perpetrate a robbery or other felony is murder in the first degree, irrespective of any premeditation, deliberation or malice aforethought. That is to say, members of the jury, when a murder is committed in the perpetration or attempt to perpetrate the felony of robbery, it is murder in the first degree, irrespective of premeditation, deliberation or malice aforethought.)"

G.S. § 14-17 provides: "A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree."

Before giving the quoted instruction, Judge Hall charged that the jury, according to its findings from the evidence, might return one of these verdicts: (1) Guilty of murder in the first degree; (2) Guilty of murder in the first degree with recommendation of life imprisonment; (3) Guilty of murder in the second degree; (4) Guilty of manslaughter; or (5) Not guilty. The indictment in this case neither alleged the killing was done after premeditation and deliberation, nor in the perpetration or attempt to perpetrate a robbery. Nevertheless, the bill is sufficient to sustain a verdict of murder in the first degree if the jury should find from the evidence, beyond a reasonable doubt, that the killing was done with malice and after premeditation and deliberation; or in the perpetration or attempt to perpetrate a robbery. The form of the bill and its affect as above set out are justified by G.S. § 15-144; State v. Arnold, 107 N.C. 861, 11 S.E. 990; State v. Covington, 117 N.C. 834, 23 S.E. 337; State v. Fogleman, 204 N.C. 401, 168 S.E. 536; State v. Linney, 212 N.C. 739, 194 S.E. 470; State v. Streeton, 231 N.C. 301, 56 S.E.2d 649; State v. Maynard, 247 N.C. 462, 101 S.E.2d 340; State v. Hill, N.C., 170 S.E.2d 885, decided December 10, 1969.

If a defendant is charged with murder in the first degree by bill of indictment drawn under G.S. § 15-144, and desires to know whether the State relies on proof the killing was done with premeditation and deliberation, or in the perpetration or attempt to perpetrate a robbery, he should apply for a bill of particulars as provided in G.S. § 15-143. State v. Stephens, 170 N.C. 745, 87 S.E. 131; State v. Gibbs, 234 N.C. 259, 66 S.E.2d 883.

Careful review fails to disclose any error of law in the trial.

No error.

MOORE, J., did not take part in the consideration or decision of this case.