State v. Oxentine

154 S.E.2d 529 (1967) 270 N.C. 412

STATE of North Carolina
v.
Fred Roosevelt OXENTINE.

No. 340.

Supreme Court of North Carolina.

May 24, 1967.

Paul L. Beck, Lenoir, Court-appointed attorney for defendant appellant.

T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

PLESS, Justice.

The defendant's objection to the excusal of jurors by the clerk of superior court was not well founded. The motion itself says that the persons excused were those who made application for exemption and who were entitled to claim such exemption under G.S. §§ 9-19, 90-45, 90-150, and 127-84, and that those excused from service was "pursuant to the North Carolina General Statutes." His claim that the statutes referred to above are unconstitutional is without merit. State v. Knight, 269 N.C. 100, 152 S.E.2d 179.

No other reason is presented for quashing the bill of indictment.

The record contains no evidence or reason upon which the defendant sought to quash the venire, sequester the State's witnesses, or order a special venire from another county.

In his brief, it is said "the defendant is aware that this is within the court's discretion." His view is fully supported by many decisions of our Court. State v. Strickland, 229 N.C. 201, 49 S.E.2d 469; State v. Godwin, 216 N.C. 49, 3 S.E.2d 347, and other cases therein cited. There being nothing in the record to support any claim that the court abused its discretion, these exceptions are overruled.

The State's evidence tended to show that the defendant shot and killed the deceased for no apparent reason as the latter sat in a chair, and there is nothing in the evidence to indicate any provocation on the part of the deceased. It is amply sufficient to deny the motions for nonsuit.

The defendant further excepts to the admission of the evidence of Officer Tripplett that he asked Addie Church what had happened and who had shot the deceased and she said "Fred Oxentine," and that the defendant, standing at the doorway, said, "Yes, I shot him." The defendant contends that since he had not been warned of his right to counsel or that anything he said might be used against him that this is in violation of the rule enunciated in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. He quotes from that case, "To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom * * * [H]e must be warned prior to any questioning that he has the right to remain silent * * *." The italicized phrases exclude the defendant's statement from the conclusions of the Miranda case. At the time of the statement the defendant "had not been taken into custody" or "deprived of his freedom" and he was not being questioned within the intent and meaning of the Miranda case. It was a voluntary and spontaneous statement made by the defendant, who interposed it while the officer was seeking information about what had happened and was talking with Addie Church. We do not interpret this important decision to exclude statements made at the scene of an investigation when nobody has been arrested, detained, or charged. The exception is without merit and is overruled.

The court-appointed attorney for the defendant interposed every objection available and obtained as favorable a result for the defendant as he could possibly hope for when he was not convicted of murder in the second degree, but on the lesser offense of manslaughter. The defendant never offered reason, excuse or denial of shooting the deceased.

The lawyers of North Carolina have patriotically and generously accepted the burden imposed upon them in undertaking the defense of persons accused of crime when asked to do so by the Court. Few relish these assignments, but all recognize that, as officers of the Court, and members of an honorable profession, it is their duty—and they do it.

In this case, as in all too many others, a reputable attorney accepts, from a sense of duty, the order of the Court that he represent the defendant. He has no expectation of receiving more than nominal remuneration for his services, and little chance of success for his client. He is required to make technical motions and exceptions which he knows are without merit and frequently to pursue appeals that he knows to be hopeless. He has much to lose. The record is barren of any possible defense in this case, and yet, the attorney is faced with the likelihood that in almost unlimited post-conviction hearings he will shortly be charged by his ungrateful client with dereliction and inefficiency. To him, and to other members of the Bar who render the best possible service under hopeless conditions, the public and this Court owe appreciation and gratitude. It is hereby expressed and extended.

As to the defendant, who for no reason so far shown, has tried, convicted and executed his fellow man without cause, we can only say that he has had what he would not give—a fair trial.

No error.