STATE
v.
Alvin Med CHRISTOPHER.
No. 293.
Supreme Court of North Carolina.
December 12, 1962.*670 T. W. Bruton, Atty. Gen., Harry W. Mc-Galliard, Asst. Atty. Gen., for the State.
Charles W. Gordon, Jr., Newton, for defendant.
DENNY, Chief Justice.
The only exceptions and assignments of error brought forward and argued in the appellant's brief are as follows: (1) Those challenging the admission of those parts of the defendant's confession which disclosed the commission of other offenses, to wit, the stealing of an automobile some thirty days prior, and that he had paid a fine for improper registration; (2) that the argument of the solicitor was improper and prejudicial to him; and (3) to certain portions of the court's charge to the jury.
Therefore, except as to those portions of the confession challenged as indicated above, the admission of the confession made to the officers by the defendant is unchallenged.
The automobile theft in question occurred about thirty days before the murder was committed. The State proceeded on the theory that the defendant killed the service station attendant in the perpetration of a robbery, the purpose of which was to obtain money with which to regain possession of the stolen automobile which was being held for the payment of certain repairs made thereon by a local garage in Gastonia.
In State v. Fowler, 230 N.C. 470, 53 S.E.2d 853, Stacy, C. J., in considering the admission of evidence with respect to other crimes, said: "We start with the general rule that evidence of one offense is inadmissible to prove another and independent crime, the two being wholly disconnected and in no way related to each other. State v. Choate, 228 N.C. 491, 46 S.E.2d 476; State v. Harris, 223 N.C. 697, 28 S.E.2d 232; State v. Smith, 204 N.C. 638, 169 S.E. 230; State v. Deadmon, 195 N.C. 705, 143 S.E. 514; State v. Dail, 191 N.C. 231, 131 S.E. 573; State v. Miller, 189 N.C. 695, 128 S.E. 1; State v. Graham, 121 N.C. 623, 28 S.E. 409. The reason for the rule is to preserve to the accused, unencumbered by suggestion of other crimes, the common-law presumption of innocence which attaches upon his plea of `not guilty', and to protect him from the disadvantage of extraneous and surprise charges; also to confine the investigation to the offense charged. State v. Lyle, 125 S.C. 406, 118 S.E. 803.
"To this general rule, however, there is the exception as well established as the rule itself, that proof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge or scienter, or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to *671 throw light upon one or more of these questions. State v. Stancill, 178 N.C. 683, 100 S.E. 241; State v. Beam, 184 N.C. 730, 115 S.E. 176; State v. Choate, supra [228 N.C. 491, 46 S.E.2d 476]; State v. Morris, 84 N.C. 756, 757; State v. Edwards, 224 N.C. 527, 31 S.E.2d 516; State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Ferrell, 205 N.C. 640, 172 S.E. 186; State v. Simons, 178 N.C. 679, 100 S.E. 239; State v. Kent, 5 N.D. 516, 69 N.W. 1052, 35 L.R.A. 518; Wigmore on Evidence (3rd), Vol. 2, Sec. 390; Note to People v. Molineux, 168 N.Y. 264, 61 N.E. 286, as reported in 62 L.R.A. 193-357 (q.v.)."
In the instant case, there is no objection or challenge to the introduction of those portions of the confession relating to the theft of the two automobiles stolen by the defendant during the night of 28 April 1962 in connection with the execution of his plan to rob someone to get money with which to pay for the repairs on the car he had formerly stolen. Therefore, in our opinion, the admission of that portion of the confession relating to the theft of the Oldsmobile on 1 April 1962 in Marion, North Carolina, was neither erroneous nor prejudicial in light of the facts in this case. State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Miller, 189 N.C. 695, 128 S.E. 1.
With respect to the evidence relating to the charge of "improper registration," the rule seems to be, as set out in Strong's N.C.Index, Vol. 1, page 851, Criminal Law, section 162, as follows: "Where there is abundant evidence to support the main contentions of the State, the admission of evidence of subordinate matters, even if such evidence is technically incompetent, will not justify a new trial when defendant does not make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result. * * *" These assignments of error are overruled.
Assignment of error No. 6 is based on exceptions to certain arguments made by the solicitor to the jury. The solicitor reviewed the evidence and argued with great zeal and fervor that in light of the defendant's conduct in connection with the killing of Ralph Eugene Frye, the punishment therefor should be death and that the jury should bring in a verdict of guilty of murder in the first degree without a recommendation that the punishment should be life imprisonment.
G.S. § 14-17 reads in pertinent part as follows: "A murder * * * 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 and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury."
In 1961 the General Assembly adopted G.S. 15-176.1, which reads as follows: "In the trial of capital cases, the solicitor or other counsel appearing for the State may argue to the jury that a sentence of death should be imposed and that the jury should not recommend life imprisonment."
In this jurisdiction wide latitude is given to counsel in the argument of hotly contested cases. Moreover, what constitutes an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge. State v. Bowen, 230 N.C. 710, 55 S.E.2d 466. Counsel is not entitled to travel outside of the record and argue facts not included in the evidence. Neither should counsel characterize a defendant in a manner calculated to prejudice the jury against him. State v. Bowen, supra; State v. Little, 228 N.C. 417, 45 S.E.2d 542; Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664; State v. Roberts, 243 N.C. 619, 91 S.E.2d 589; State v. Roach, 248 N.C. 63, 102 S.E.2d 413. We have carefully considered the portions of the solicitor's argument to which exceptions were entered and *672 we hold that in light of the evidence in this case and the provisions of G.S. § 15-176.1, the argument made by the solicitor was permissible. This assignment of error is overruled.
Assignment of error No. 9 challenges the correctness of the following portion of the charge: "Now, lady and gentlemen of the jury, the law of homicide in this case is divided into three degrees: murder in the first degree; murder in the second degree; and manslaughter. Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. Now, we are concerned here in the case at bar with the charge against the defendant of murder in the first degree."
The appellant concedes that it was proper for the court to charge only as to murder in the first degree, the murder having been committed in the perpetration of a robbery, but he contends that the trial judge committed error when he said, "the law of homicide in this case is divided into three degrees: murder in the first degree; murder in the second degree; and manslaughter." The court then defined murder in the first degree and informed the jury that the charge against the defendant was that of murder in the first degree. We cannot conceive that the charge as given was prejudicial to the defendant. There is no merit in this contention and the assignment of error is overruled.
In recounting the State's contentions, the court told the jury: "The State further says and contends that the defendant came to Hickory to rob somebody and did rob and kill Ralph Eugene Frye (and that the defendant is old enough to know right from wrong and that he was a killer, and that it was a calculated crime and that he left Gastonia for the purpose of going to Hickory to rob somebody and that it was a brutal murder and you should so find and convict him of murder in the first degree)."
Assignment of error No. 14 is directed to the use of the words, "and that he was a killer." We hold that the use of the above words in stating the contentions of the State was not prejudicial. Moreover, the rule with respect to the contentions given in a charge is stated in Strong's N.C. Index, Vol. 1, page 792, Criminal Law, section 112, as follows: "Ordinarily a misstatement of the contentions of the parties, or objection that the court failed to give fully and accurately the contentions of defendant must be brought to the court's attention in apt time to afford opportunity for correction in order for an exception thereto to be considered on appeal." State v. Case, 253 N.C. 130, 116 S.E.2d 429; State v. Rhodes, 252 N.C. 438, 113 S.E.2d 917; State v. Stone, 241 N.C. 294, 84 S.E.2d 923.
The defendant further assigns as error the following portion of the charge: "You may for any reason and within your discretion, should you find the defendant guilty of murder in the first degree, add to that the recommendation, if you desire to do so, that the defendant be imprisoned for life, in which event that disposition will be made of the case."
Immediately prior to giving that portion of the charge set forth above, the court read the proviso contained in G.S. § 14-17, and said: "Therefore, the court specifically instructs you, members of the jury, that it is patent that the sole purpose of this Act is to give to the jury in all cases where a verdict of guilty of murder in the first degree shall have been reached the right to recommend that the punishment for the crime shall be imprisonment for life in the State's Prison. No conditions are attached to and no qualifications or limitations are imposed upon the right of you the jury to so recommend. It is an unbridled discretionary right and it is incumbent upon the court to so instruct the jury and the court does so instruct you."
Therefore, we hold that this assignment of error is without merit since the identical question was considered and a similar instruction *673 was upheld in State v. Marsh, 234 N.C. 101, 66 S.E.2d 684.
We have carefully examined the remaining assignments of error and in them we find no prejudicial error has been shown. We hold, therefore, that in the trial below there was no error in law.
No error.