State v. Benton

174 S.E.2d 793 (1970) 276 N.C. 641

STATE of North Carolina
v.
Mary Benton BENTON.

No. 17.

Supreme Court of North Carolina.

June 12, 1970.

Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., and D. M. Jacobs, Staff Atty., Raleigh, for the State.

Byrd, Byrd & Ervin, Morganton, for defendant-appellant.

SHARP, Justice.

Appellant enumerates 26 assignments of error. Those brought forward, which we deem entitled to consideration, will be discussed topically.

Assignments Nos. 1, 2, and 3 raise the question whether the trial judge abused his discretion in holding that Epley had sufficient mental capacity to be a competent witness. The North Carolina rule is well stated in 97 C.J.S. Witnesses § 57b (1957): "Unsoundness of mind does not per se render a witness incompetent, the general rule being that a lunatic or weakminded person is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with respect to the questions at issue. The decision as to the competency of such a person to testify rests largely within the discretion of the trial court." Accord, Lanier v. Bryan, 184 N.C. 235, 114 S.E. 6, 26 A.L.R. 1488; Carpenter, Solicitor v. Boyles, 213 N.C. 432, 196 S.E. 850; State v. Cade, 215 N.C. 393, 2 S.E.2d 7; Stansbury, N.C. Evidence § 55 (2d ed. 1963).

Defendant's thesis seems to be that the judge manifestly acted against reason when he permitted Epley to become a witness after Dr. Darrow, the psychiatrist employed at the instance of Epley's attorneys prior to his trial for murder, had testified, that in his opinion, it was impossible for Epley to give reliable testimony. This contention is untenable. The law does not say that the decision of the trial judge as to the competency of a witness shall be controlled by expert medical testimony or that the evidence of a psychiatrist, whether employed by the State or defendant, or appointed by the Court, is entitled to greater weight than that of a qualified lay witness. "Anyone who has observed another, or conversed with him, or had dealings with him, and a reasonable opportunity, based thereon, of forming an opinion satisfactory to himself as to the mental condition of such person, is permitted to give his opinion in evidence upon the issue of mental capacity, although the witness be not a psychiatrist or expert in mental disorders." In Re Will of Brown, 203 N.C. 347, 350, 166 S.E. 72, 74; Stansbury, N.C. Evidence § 127 (2d ed. 1963).

At the time Dr. Darrow testified, he had not seen Epley since 13 March 1968, more than a year and a half prior to the trial which we now review. Between December 1967 and 13 March 1968, Dr. Darrow had examined Epley four times while he was in jail awaiting his own trial upon a charge of first-degree murder. During that three and one-half-month period, despite the tensions, apprehensions, and uncertainties to which he was necessarily subjected, Epley's mental condition had improved. On the voir dire, Judge Martin observed and questioned Epley closely. He made his observations, as well as his questions, a part of the record, and from them concluded that Epley was a competent witness. The court's decision could be set aside only for a clear abuse of discretion or upon a showing that it was based upon an erroneous conception of the law. Neither abuse of discretion nor error in law appears. Indeed, Epley's subsequent testimony and conduct in court fully justified the court's ruling on voir dire. Although Epley's memory as to details sometimes faltered, and there were minor inconsistencies in his evidence, as to all material matters his testimony was clear and consistent. Furthermore, it was fully corroborated by the testimony of the law-enforcement officers, his brother, and his mother. Finally, we note that the jurors also had full and ample opportunity to observe Epley, and they were charged that even though defendant counseled and commanded him to kill Benton they would acquit her unless they found that Epley had sufficient mental capacity to understand and carry out her commands and unless he actually killed Benton "as the result of such alleged acts of defendant."

In her brief, appellant asserts that the question raised by assignments of error 24, 25, and 9 is as follows: "4. Did the trial judge commit error by incorrectly charging the jury as to the mental capacity required of the principal (Epley)? (Assignments of Error Nos. 24 and 25). (a) Did the trial court commit error when it excluded evidence as to the sanity of the principal at the time the act was committed? (Assignment of Error No. 9.)" These three assignments, however, do not bring into focus the main points which defendant attempts to make.

Assignments 24 and 25 respectively aver that the judge committed error "in charging the jury on the mental capacity of the principal, Raymond Epley" and that he "incorrectly charged" concerning the mental capacity of Epley. These assignments present no question for the court's determination, for they do not not set out that portion of the charge which defendant contends is an erroneous statement of the law. "The appellant should quote in each assignment the part of the charge to which he objects." State v. Wilson, 263 N.C. 533, 534, 139 S.E.2d 736, 737. "[A] mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient." State v. Staten, 271 N.C. 600, 608, 157 S.E.2d 225, 231.

Assignment of error No. 9 is based upon an exception to the court's failure to permit Dr. Darrow to answer the following question: "Do you have an opinion as to whether or not Raymond Epley knew right from wrong on the 27th day of November, 1967?" If permitted to answer, Dr. Darrow would have said that, in his opinion, at the time of the alleged murder in November 1967, Epley "did not have the ability to know the difference between right and wrong because of his mental illness."

The objection to the foregoing question was properly sustained. Insanity will exempt an accused from criminal responsibility only if, at the time he commits the act which would otherwise be illegal, he was incapable of knowing the nature and quality of his act or of distinguishing between right and wrong with relation thereto. In other words, the question is the capacity of a defendant "to distinguish between right and wrong at the time and in respect of the matter under investigation." State v. Jones, 229 N.C. 596, 598, 50 S.E.2d 723, 724. Accord, State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Mercer, 275 N.C. 108, 165 S.E.2d 328. The question is not whether a defendant knows or knew right from wrong generally.

In her brief, appellant says that she should "have had the benefit of a charge by the court to the effect that if Raymond Epley was insane at the time the alleged killing occurred, then it would be the duty of the jury to find the defendant not guilty." The record, however, fails to show that appellant excepted in any manner to the court's failure to so charge. State v. Hill, 266 N.C. 103, 145 S.E.2d 346. To be effective "[a]n assignment based on failure to charge should set out the defendant's contention as to what the court should have charged." State v. Wilson, 263 N.C. 533, 534, 139 S.E.2d 736, 737.

Neither assignments 24, 25 nor assignment 9 presents the question of the court's failure to charge upon Epley's alleged exemption from criminal responsibility by reason of insanity as bearing upon defendant's guilt as his accessory. However, we can perceive no prejudice to defendant from the court's failure to instruct the jury that if Epley, by reason of insanity, was not guilty of the murder of Benton then appellant could not be guilty as an accessory before the fact in the murder charged, for all the evidence tends to show that if defendant was not an accessory she was the principal felon and guilty of murder in the first degree.

Parties involved in the commission of a murder are either principals or accessories. State v. Minton, 234 N.C. 716, 68 S.E.2d 844. "A principal in the first degree is the person who actually perpetrates the deed either by his own hand or through an innocent agent." (Emphasis added.) Any other who is actually or constructively present at the place of the crime either aiding, abetting, assisting, or advising in its commission, or is present for that purpose, is a principal in the second degree. Miller, Criminal Law §§ 73, 74, 75 (1934). Accord, State v. Burgess, 245 N.C. 304, 96 S.E.2d 54; State v. Jarrell, 141 N.C. 722, 53 S.E. 127. In our law, however, "the distinction between principals in the first and second degrees is a distinction without a difference." Both are principals and equally guilty. State v. Allison, 200 N.C. 190, 194, 156 S.E. 547, 549; accord, State v. Gaines, 260 N.C. 228, 132 S.E.2d 485; State v. Peeden, 253 N.C. 562, 117 S.E.2d 398. An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it. State v. Benton, 275 N.C. 378, 167 S.E.2d 775; State v. Bass, 255 N.C. 42, 120 S.E.2d 580; Miller, supra, § 76; 22 C.J.S. Criminal Law § 90 (1961).

Thus, ordinarily, the only distinction between a principal and an accessory before the fact is that the latter was not present when the crime was actually committed. In some states, by statute, all distinction between a principal and accessory before the fact has been abolished, 22 C.J.S. Criminal Law § 90 (1961); 1 Wharton's Criminal Law and Procedure § 110 (Anderson, 1957); 40 Am.Jur.2d Homicide § 28 (1968). See State v. Bryson, 173 N.C. 803, 92 S.E. 698, and the comments thereon in 41 N.C.L.Rev. 118 and State v. Jones, 254 N.C. 450, 119 S.E.2d 213. Actual presence, however, becomes immaterial when a person causes a crime to be committed by an innocent agent, that is, one who is not himself legally responsible for the act. "If a person causes a crime to be committed through the instrumentality of an innocent agent, he is the principal in the crime, and punishable accordingly, although he was not present at the time and place of the offense * * *. Under such circumstances, an exception to the rules applicable to principals and accessories, in the trial of criminal cases arises ex necessitate legis." 22 C.J.S. Criminal Law § 84b (1961). Accord, State v. Minton, supra; People v. Pounds, 168 Cal.App.2d 756, 336 P.2d 219; Johnson v. Alabama, 142 Ala. 70, 38 So. 182, 2 L.R.A., N.S., 897; 4 Blackstone's Commentaries, Ch. 3, p. 34; 1 Anderson, Wharton's Criminal Law and Procedure § 106 (1957); 21 Am.Jur.2d Criminal Law § 21 (1965). Note, 2 L.R.A.,N.S., 897 (1906).

Where one incites or employs a mental defective to kill another the question whether the employer is guilty as a principal depends upon whether the defective was criminally responsible for his act under the McNaughten rule. "If the agent is legally responsible for his own acts, the instigator is only an accessory before the fact, if he is absent when the crime is committed. When one acts through an agent, he can himself be guilty as a principal in the first degree only when the agent is innocent." Miller, supra, § 74; accord, People v. Adams, 3 Denio 190 (N.Y.), 45 Am.Dec. 468.

The punishment specified in G.S. § 14-17 for first-degree murder is either death or imprisonment for life. Had defendant been convicted of first-degree murder she could not have received a lesser sentence than the one from which she appeals. Prima facie, she could have incurred the death penalty (but see United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L. Ed.2d 138, and Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317.) In any event, having been convicted as an accessory before the fact to the murder of her husband and having received a life sentence, she may not complain that she was not convicted of his first-degree murder. State v. Bryson, supra, 173 N.C. at 806, 807, 92 S.E. 698. At best, she could not have improved her situation.

Defendant's assignment of error No. 26 is that the judge erred "in failing to charge the jury of the necessity of a causal relationship between the action of the accessory and the commission of the act by the principal." It is elementary that a charge must be construed "contextually as a whole," 4 Strong, N.C. Index Trial § 33 (1961). When so construed, it is apparent that the jurors were instructed that before they could convict defendant they must find that her request and demands that Epley murder Benton caused him to commit the crime. Furthermore, in this connection, the jurors were instructed that for the State to prove that defendant procured Epley to murder Benton it must first show that he had sufficient mental capacity to understand and carry out defendant's commands; that, lacking such capacity, he could not have killed Benton as the result of defendant's procurement, and she would not be guilty. Inter alia, the judge also told the jury that to be guilty as an accessory before the fact to murder "a defendant must (have) incited, procured or encouraged the commission of the crime so as to participate therein by some words or acts," and must have given instructions, directions or counsel which were "substantially followed."

We are convinced that the jury could not have misunderstood that defendant's guilt depended upon whether she "procured" Epley to murder Benton. Assignment of error No. 26 is overruled.

Defendant's fourth assignment of error is that the trial judge committed error in denying defendant's motion to strike Epley's statement that he "was in prison for the murder of Marshall Adam Benton." Immediately following this statement there appears in the transcript, "Exception No. 4." The question which elicited this answering statement is not set out. The case on appeal shows no objection to the question and no motion to strike the answer to it. Furthermore, shortly thereafter on cross-examination, counsel for defendant elicited from Epley the information "that he was charged with first degree murder and entered a plea of second degree murder for which he received a sentence of twenty (20) to thirty (30) years." We also note that at the first trial of this case in November 1968, "defendant's counsel proffered a stipulation to the effect that Raymond Epley had been indicted for the murder of Marshall Adam Benton on November 27, 1967; that, at the May 12, 1968 Session, he had tendered, and the State had accepted, a plea of guilty of murder in the second degree; and that, based on said plea, he had been sentenced to imprisonment for a term of not less than twenty nor more than thirty years." State v. Benton, 275 N.C. 378, 384, 167 S.E.2d 775, 779.

Obviously, Epley's statement was not prejudicial to defendant for it is upon the fact of his conviction (plea of guilty) of murder in the second degree that defendant bases her main arguments on appeal. However, with reference to assignment No. 4 we direct attention to Lewis v. Parker, 268 N.C. 436, 437, 150 S.E.2d 729, 730. There, we reiterated what we have said many times before:

"Rules 19 and 21, Rules of Practice in the Supreme Court, 254 N.C. 783, 795, 803, require that asserted error must be based on an appropriate exception, and must be properly assigned. We have repeatedly said that these rules require an assignment of error to show specifically what question is intended to be presented for consideration without the necessity of going beyond the assignment of error itself. A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. * * * The rules of practice in this Court are mandatory and will be enforced. * * *" (Copious citations of authority omitted.) See also State v. Hill, 266 N.C. 103, 145 S.E. 2d 346; State v. Wilson, 263 N.C. 533, 139 S.E.2d 736.

The above comments are equally applicable to defendant's assignments of error 1-3, 5-7, 10-14, 22-26. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416.

By assignments of error 22 and 23 defendant challenges the following portions of the judge's charge: "In order to convict the defendant * * * the State must prove to you beyond a reasonable doubt that Raymond Epley committed the offense of second degree murder on Marshall Benton. * * * If the State has satisfied you beyond a reasonable doubt * * * that Raymond Epley intentionally shot Marshall Adam Benton with a 30.06 rifle * * * and inflicted wounds upon Marshall Benton that caused his death, malice in that event is implied by the law and nothing else appearing Epley would be guilty of murder in the second degree, and it would be your duty to so find."

Appellant does not contend that the judge incorrectly stated the law with reference to second-degree murder. She states her thesis as follows: "If a murder is committed pursuant to the counseling, procuring, and advising of an accessory, that murder must be one which is committed with premeditation and deliberation" (murder in the first degree). For that reason "the defendant was entitled to have the jury charged on the elements of first degree murder and not second degree murder."

We deduce from the foregoing that defendant's proposition is that there can be no accessory before the fact to second-degree murder. Admittedly the concept of accessory before the fact presupposes some arrangement between the accessory and the principal with respect to the commission of the crime. State v. Bass, supra, 255 N.C. at 51, 120 S.E.2d at 587. It does not follow, however, that there can be no accessory before the fact to second-degree murder, which (as Judge Martin charge) imports a specific intent to do an unlawful act. Since malice, express or implied, is a constituent element of murder in any degree, there may be accessories before the fact to the crime of murder in both degrees. The principle is stated in Wharton on Homicide § 59 (3d ed. 1907) as follows: "There may, of course, be accessories before the fact in all kinds of murder with deliberation, or premeditation, or malice aforethought, including murder in the second degree, which involves malice." Accord, 1 Wharton's Criminal Law and Procedure (Anderson, 1957) § 111 and cases cited in footnote 12; accord, 40 Am.Jur.2d Homicide § 28 (1968); 40 C.J.S. Homicide § 9b p. 839 (1944). (For comparison with manslaughter see Annots., 44 A.L.R. 576 (1926); 95 A.L.R.2d 175 (1964); 40 Am. Jur.2d Homicide § 30 (1968).

In Jones v. State, 13 Tex. 168, 62 Am. Dec. 550 (1854), the principal, George Jones, was indicted for murder in the first degree under a statute equivalent to G.S. § 14-17. He was convicted of murder in the second degree. At the same time, Nancy Jones was convicted as an accessory before the fact to his crime. She moved for her discharge "because there could be no accessory before the fact to murder in the second degree." In denying the motion the court said that to constitute the offense of murder in the second degree "there must be malice, and if malice, it would admit of complicity. * * * The conclusion that we arrive at is that as murder in the second degree can only be committed with malice, that it admits of accessories, and there was no error in refusing to discharge the appellant Nancy Jones." (Emphasis added.)

Prior to 1893 there were no degrees of murder in North Carolina. Any unlawful killing of a human being with malice aforethought, express or implied, was murder and punishable by death. State v. Streeton, 231 N.C. 301, 56 S.E.2d 649; State v. Dalton, 178 N.C. 779, 101 S.E. 548; State v. Rhyne, 124 N.C. 847, 33 S.E. 128; State v. Boon, 1 N.C. 191. "Malice aforethought was a term used in defining murder prior to the time of the adoption of the statute dividing murder into degrees. As then used it did not mean an actual, express or preconceived disposition; but imported an intent, at the moment, to do without lawful authority, and without the pressure of necessity, that which the law forbade. State v. Crawford, 13 N.C. 425. As used in C.S., 4200, now G.S. § 14-17, the term premeditation and deliberation is more comprehensive and embraces all that is meant by aforethought, and more." State v. Hightower, 226 N.C. 62, 64, 36 S.E.2d 649, 650 (emphasis added); accord, State v. Smith, 221 N.C. 278, 20 S.E.2d 313; State v. Pike, 49 N.H. 399, 6 Am.Rep. 533.

By Ch. 85, N.C. Public Laws of 1893, in addition to felony murder, the General Assembly characterized as murder in the first degree any murder perpetrated by means of poison, lying in wait, imprisonment, starving, torture or any other kind of wilful, deliberate and premeditated killing. (The latter, at common law, was murder with express malice. State v. Steeves, 29 Or. 85, 43 P. 947.) All other kinds of murder were designated murders in the second degree. "Under statutes of this description, murder in the second degree is common-law murder but the killing is not accompanied by the distinguishing features of murder in the first degree." 40 C.J.S. Homicide § 35 (1944).

Murder in the first degree is sometimes defined briefly as murder in the second degree plus premeditation. Thus, if Epley was guilty of murder in the first degree, a fortiori, his guilt encompassed murder in the second degree. There being no degrees of guilt for an accessory before the fact to murder, no possible prejudice resulted to appellant from the challenged instructions with reference to second-degree murder.

The 1893 Act fixed the punishment for murder in the second degree at not less than two nor more than thirty years. Death remained the mandatory punishment for murder in the first degree until 1949, when the legislature provided life imprisonment as an alternative punishment if, at the time of rendering its verdict in open court, the jury shall so recommend. N.C. Sess.Laws 1949, Ch. 299 (now G.S. § 14-17).

Since the enactment of N.C.Pub.Laws 1874-75, Ch. 212 (now G.S. § 14-6), the law has provided that "any person who shall be convicted as an accessory before the fact in either of the crimes of murder, arson, burglary, or rape shall be imprisoned for life in the State's prison." The punishment prescribed for an accessory before the fact to any other felony (except horse or mule stealing) is a fine or imprisonment for not more than ten years.

Thus, the wording of G.S. § 14-6 has remained unchanged for more than ninety-five years and for more than seventy-five years since the legislature divided murder into degrees. Notwithstanding, in addition to her contention that there can be no accessory before the fact to murder in the second degree, by assignments 17, 19, and 20, appellant contends that the statute does not authorize a life sentence for such an accessory, even conceding the possibility of his existence. She argues that the history of G.S. § 14-6 manifests the legislature's intent that an accessory before the fact in murder would be sentenced to life imprisonment only when the principal was subject to the death penalty. Upon that premise she contends that the maximum punishment which can now be imposed upon an accessory before the fact in second-degree murder is ten years. Neither contention is tenable.

Courts will not presume that the legislature intended a repeal by implication, 50 Am.Jur. Statutes § 539 (1944); nor will we assume that the legislature's division of murder into degrees and reduction of the punishment for murder in the second degree implied the reduction in the sentence for an accessory before the fact in second-degree murder, which defendant suggests. Had the legislature intended this revision it would undoubtedly have made it ipsissimis verbis. It is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law. State v. Lance, 244 N.C. 455, 94 S.E.2d 335; Raeford Lumber Co. v. Rockfish Trading Co., 163 N.C. 314, 79 S.E. 627; 82 C.J.S. Statutes § 316 (1953). Defendant's contention that the sentence of an accessory may not exceed that of the principal in murder in the second degree is clearly refuted by the decision in State v. Mozingo, 207 N.C. 247, 176 S.E. 582 (1934).

In Mozingo, the evidence tended to show that the defendant procured Fred Wade to shoot and kill Bennie Mozingo from ambush. Wade, who was awaiting trial as the principal in the murder, testified against defendant as a witness for the State. Defendant was convicted as an accessory before the fact to murder and sentenced to life imprisonment. Thereafter Wade was allowed to plead guilty to murder in the second degree and received a term of thirty years. Upon appeal, the defendant complained that his sentence as an accessory was for life while that of the principal was only thirty years. The Court disposed of this complaint summarily:

"It is sufficient to say that both the judgment against the defendant and the judgment against Fred Wade, are authorized by statute. C.S. 4171, and C.S. 4200. The statute prescribing imprisonment for life upon conviction as an accessory before the fact to the crime of murder was in force at the time the statute defining murder in the first degree and murder in the second degree, respectively, and prescribing the punishment upon a conviction of murder in the first degree as death, and the punishment upon a conviction of murder in the second degree as imprisonment for not less than two nor more than thirty years, was enacted. The former statute has not been amended or repealed. It is now in full force and effect." Id. at 250, 176 S.E. at 583.

From the silence of the legislature we may assume that the lawmaking body was satisfied with the interpretation this Court has placed upon G.S. § 14-6, and that the punishment for an accessory before the fact to a murder in any degree remains imprisonment for life. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372; 50 Am.Jur. Statutes § 326 (1944).

Defendant's assignment of error No. 18 is that a life sentence for second-degree murder is constitutionally impermissible in that it (1) constitutes cruel and unusual punishment and (2) denies her the equal protection of the laws in violation of the Fourteenth Amendment. We dis-dispose of the first contention, that defendant's life sentence is cruel and unusual punishment, by saying that it is the punishment fixed by the applicable statute, and that it is not disproportionate to her offense or unduly harsh in comparison with Epley's sentence. In this case—as is often true, no doubt—the culpability of the accessory exceeds that of the principal. See State v. Robinson, 271 N.C. 448, 156 S.E.2d 854; State v. Greer, 270 N.C. 143, 153 S.E.2d 849; State v. Elliott, 269 N.C. 683, 153 S.E.2d 330; 24B C.J.S. Criminal Law 1978 (1962). As to the second contention, the rule is well established that "equal protection of the laws is not denied by a statute prescribing the punishment to be inflicted on a person convicted of crime, unless it prescribes different punishments for the same acts committed under the same circumstances by persons in like situation." 16A C.J.S. Constitutional Law § 564 (1956). Accord, State v. Fowler, 193 N.C. 290, 136 S.E. 709. G.S. § 14-6 specifies life imprisonment for all persons convicted as accessories before the fact in the crime of murder.

There is no assignment No. 15; assignment of error No. 16 is formal. Assignment No. 8 (to the denial of the motion for nonsuit) and assignment No. 21 (to the overruling of the motion in arrest of judgment), being patently without substance, were not brought forward. Assignments 5-7 and 10-14 are not deemed to merit discussion.

Because this appeal is from the second trial of a serious felony, we have considered every assignment of error which defendant attempted to bring forward notwithstanding appellant's failure to comply with our rules in many instances. However, we again point out that our rules are applicable to indigent defendants and their court-appointed counsel as well as to all others, and that the obligations of court-appointed counsel to his client and to the court are no less than those of privately retained counsel. State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655; State v. Price, 265 N.C. 703, 144 S.E.2d 865.

Today, an unsucessful appeal in a criminal case—it matters not how skillfully and vigorously prosecuted or that the appeal may have been totally devoid of merit—is often followed by irresponsible and unjustified charges from the prisoner that his "court-appointed counsel was incompetent." Clearly, a failure on the part of attorneys to comply with the rules of the appellate courts invite such charges. To forestall these accusations against competent lawyers, who have nevertheless neglected to familiarize themselves with our rules, we have indulged lately infractions which formerly would not have been countenanced. However, we cannot be expected to continue this practice, which is neither in the interest of the Court nor the Bar.

In this case, after having carefully considered every assignment of error, we find in the trial below

No error.