State v. Taborn

150 S.E.2d 779 (1966) 268 N.C. 447

STATE
v.
James Edward TABORN and Willie Edward, Alias Bozo Williams.

No. 414.

Supreme Court of North Carolina.

November 2, 1966.

Atty. Gen. T. Wade Bruton, Asst. Atty. Gen. George A. Goodwyn, for the State.

T. S. Royster, Jr., Oxford, for defendants appellants.

PER CURIAM:

Witness for the State, N. E. White, testified to a confession made to him by the defendant Royster, which was not admitted against the defendants Taborn and Williams. White used the word "subjects" as descriptive of persons who participated with him (Royster) in the crime. At one point in his testimony White pointed with his finger toward the defendants Taborn and Williams. Upon their objection, the Court overruled it "unless he is pointing to somebody". The Court directed the witness to point toward the ceiling instead. The defendants contend the Judge committed prejudicial error in failing to sustain their objection to this. We cannot agree. Bobbitt, J., speaking for the Court in State v. Kerley, 246 N.C. 157, 97 S.E.2d 876, stated: "Where two or more persons are jointly tried, the extrajudicial confession of one defendant may be received in evidence over the objection of his codefendant(s) when, but only when, the trial judge instructs the jury that the confession so offered is admitted as evidence against the defendant who made it but is not evidence and is not to be considered by the jury in any way in determining the charges against his codefendant(s). State v. Bennett, 237 N.C. 749, 753, 76 S.E. 2d 42, and cases cited. While the jury may find it difficult to put out of their minds the portions of such confessions that implicate the codefendant(s), this is the best the court can do; for such confession is clearly competent against the defendant who made it." Stansbury discusses this same point by saying: "Confessions of one defendant are not evidence against a codefendant, but they may be admitted against the one making them with instructions to the jury not to consider them against the codefendant, and this is true although they implicate the defendant as to whom they are inadmissible." Stansbury, North Carolina Evidence, 2d Edition, Sec. 188. The evidence was limited by proper instruction and we do not find any prejudicial error.

We have considered the exceptions to the charge and find them without merit.

Finally, the defendants argue that it was cruel and unusual punishment because of the distinctions in the sentences of the three defendants. The sentencing is within the sound discretion of the Judge so long as it is within the statutory limits. There is no such thing as a "science of penology". No human being has the perfect and error-proof ability to say, down to the exact year, how much time, through imprisonment, shall be taken from the life of his fellow man. But, the trial judge has information and observation not available to us. We cannot, and would not, say he was wrong.

No Error.