STATE
v.
Theodore BOYKIN.
No. 146.
Supreme Court of North Carolina.
October 11, 1961.*869 R. D. Johnson, Jr., Warsaw, J. T. Gresham, Jr., Jacksonville, for defendant-appellant.
T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.
HIGGINS, Justice.
The defendant seeks a new trial on each count in the indictment upon the ground the court committed error by (1) overruling his plea of former jeopardy, (2) admitting in evidence the defendant's confession, (3) permitting the State to introduce the order for the post-mortem examination.
The power of the presiding judge to order a mistrial in a criminal case after the jury has been impaneled, and before verdict, has been the subject of review by this Court beginning with State v. Garrigues, 2 N.C. 241. The many subsequent decisions dealing with the court's power to discharge a jury and order a new trial have *870 been cited and analyzed by Parker, J., in State v. Cofield, 247 N.C. 185, 100 S.E.2d 355; by Bobbitt, J., in State v. Crocker 239 N.C. 446, 80 S.E.2d 243; by Stacy, C. J., in State v. Harris, 223 N.C. 697, 28 S.E.2d 232; and in State v. Beal, 199 N.C. 278, 154 S.E. 604. "It is only in cases of necessity in attaining the ends of justice that a mistrial may be ordered in a capital case without the consent of the accused." [223 N.C. 697, 28 S.E.2d 235.]
In the light of our decisions, the defendant's objection to the order of mistrial in this case and his plea of former jeopardy based thereon cannot be sustained. Both he and his counsel of record consented to the order and signed it. However, in view of the condition of the judge's health, the order would have been valid even if the defendant and his counsel had objected. It goes without saying that a superior court trial cannot go on without a presiding judge. In this instance, before the State had completed its evidence, Judge Morris suffered a heart attack, a doctor was called immediately, and the Judge was removed from the courthouse to the hospital about 300 yards away. Immediately, he ordered the court recessed from day to day, hoping to recover sufficiently to continue the trial. However, on the third day after his admission, Judge Morris, from his hospital bed, made findings and ordered a mistrial heretofore quoted in full.
The findings of fact while terse and succinct, are amply sufficient to show necessity for the mistrial. This is so even under the rigid requirements in the early days of this State's judicial history and without the prisoner's consent. In State v. Ephraim, 19 N.C. 162; In Matter of Spiers, 12 N.C. 491, the rule is stated: "* * * that the jury cannot be discharged without the prisoner's consent, but for evident, urgent, overruling necessity, arising from some matter occurring during the trial, which was beyond human foresight and control; and generally speaking, such necessity must be set forth in the record."
The rule has been subsequently relaxed: "It is well settled, and admits of no controversy, that in all cases, capital included, the court may discharge a jury and order a mistrial when it is necessary to attain the ends of justice. It is a matter resting in the sound discretion of the trial judge; but in capital cases he is required to find the facts fully, and place them upon [the] record so that upon a plea of former jeopardy, as in this case, the action of the court may be reviewed." State v. Beal, supra [199 N.C. 278, 154 S.E. 614]. The plea of former jeopardy was properly overruled.
By his second assignment of error the defendant challenges the admission of his confession. The record recites: "After hearing evidence in the absence of the jury, Judge Fountain overruled the objection, holding that whatever the prisoner said was voluntary." The record does not disclose what evidence the judge heard in the absence of the jury. It is presumed, therefore, the evidence was sufficient to sustain the finding.
After Mr. Hartley testified, the defendant moved to strike his testimony. The testimony is quoted in the factual statement. The court refused to allow the motion, whereupon the defendant, by crossexamination, sought to show additional facts relating to the confession. The crossexamination disclosed that the interrogation of the defendant took place in the sheriff's private office in the presence of five officers, three of whom were in uniform and were armed. "The prisoner observed he could not write." Nothing else was offered to impeach the confession. The evidence relating thereto was properly admitted as voluntary. State v. Davis, 253 N.C. 86, 116 S.E.2d 365; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572; State v. Mays, 225 N.C. 486, 35 S.E.2d 494.
*871 Finally, counsel for the defendant assign as error the admission of the solicitor's order to the coroner to exhume the body of Mrs. Barnes. The objection was made upon the ground the order contained the words "foul play." The purpose of the order was to obtain, by the post-mortem examination, evidence as to the cause of death. Based on the post-mortem examination, Dr. Hawes testified that in his opinion death resulted from the chest wounds.
The State's evidence was full, complete, and convincing. The defendant knew that Mrs. Barnes lived alone. He had worked on her farm. He was seen half a mile away about noon on December 24. At 4:30 that same afternoon he was 12 miles away at the home of Mary Elizabeth Kenan. At the time he had a paper bag containing a red sweater, a green sweater, a pair of nylon panties and a box of candy. He went to town, or so stated, and returned about 7:30. He announced he had some more presents. He gave to those attending the Christmas party the sweaters, panties, candy, a wrist watch, and the billfold with the name Lena T. Barnes on it. He gave Mary Elizabeth Kenan the pistol to keep overnight for him. He returned next morning for the pistol. After his arrest it was discovered hidden in Henry Wiggins' automobile in which he had been riding. He had another watch in his pocket. The pistol, watches, and the billfold were identified as the property of Mrs. Barnes. The circumstances and the confession complemented, supplemented, and corroborated each other without any inconsistencies even as to minor details. The whole evidence pointed unerringly to the defendant's guilt.
The hearing in this case was well conducted both from the bench and from the trial tables. It has been well presented here. After examination of the record with that care which the gravity of the consequences requires, we find in the trial
No error.