# State v. . Newsome > Supreme Court of North Carolina · May 9, 1928 · 195 N.C. 552 URL: https://www.frixlaw.com/law-library/cases/9812261 ## Case - **Full name:** State v. Larry Newsome. - **Court:** Supreme Court of North Carolina - **Decided:** May 9, 1928 - **Citations:** 195 N.C. 552; 143 S.E. 187; 1928 N.C. LEXIS 146 - **Precedential status:** Published - **Opinion:** Dissent by Clarkson - **Judges:** Oonnoe, Stacy, Adams, Brogden, Clarkson - **Cited by:** 63 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9812261 ## Opinion text Clarkson, J., dissenting: The administration of the criminal law is a serious undertaking; it involves the wellbeing of society. The greatest and the humblest are entitled to a fair and impartial trial. The law intends that the guilty be punished and that technicalities and refinements should not defeat justice. A trial should be on its merits. The Constitution of North Carolina on this subject is as follows: Article I, sec. 11. “In all criminal prosecutions every man has the right to be informed of the accusation against him and to confront the accusers and witnesses with other testimony, and to have counsel for his defense, and not be compelled to give evidence against himself or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.” Section 12. “No person shall be put to answer any criminal charge, except as hereinafter allowed, but by indictment, presentmeht or impeachment.” Section 13. “No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The Legislature may, however, provide other means of trial for petty misdemeanors, with the right of appeal.” In the humanity of the law it is written that the “jury of good and lawful men” cannot convict one charged with crime unless the culprit has been proven guilty of the offense charged beyond a reasonable doubt. There is no place in orderly government for mob violence. The danger of punishing the innocent is too well known — the leading case is Pilate yielding to the mob. It is a matter of common knowledge, and to the everlasting credit of this commonwealth, that the strong arms of the executives for the last seven years have reached out and protected every one, no matter how humble and how revolting and heinous was the alleged crime, and has seen to it that the law was administered through the courts. During that time not a single lynching has taken place. There has been no super-government in this commonwealth, so courts should be slow to grant new trials on technical grounds with no merit and where no injustice has been done. The present record, as I construe it, discloses that on the trial of defendant every legal right given to him by the Constitution was complied with. This Court, under Article IY, sec. 8, has “no jurisdiction to review, upon appeal, any decision of the courts below,” except “upon any matter of law or legal inference.” The power “to issue any remedial *584 writs necessary to give it a general supervision and control over, the proceedings of the inferior courts” does not apply to a case like the present one. As to what occurred in the courtroom during the progress of the trial, no exception or assignment of error was made by defendant. Nor did defendant during the progress of the trial request a mistrial for what took place and for failure to except and assign error. Nor did defendant at the conclusion ask that the verdict be set 'aside or for a new trial. The defendant is not now entitled in this Court to be heard that he is prejudiced by the occurrence. Granting that it was unseemly and out of the ordinary, defendant did not except and assign error, but allowed the trial to proceed. The court below charged the jury pointedly that what had occurred in the courtroom should or ought not to influence them in the slightest degree, and they should be governed only by the evidence of the witnesses on the stand unbiased by anything that had occurred or anything they had observed. The presumption is that the jury was composed of men “of good moral character and of sufficient intelligence.” Their duty was to render a verdict upon the evidence. This Court cannot ex mero• motu step in and grant a new trial after the charge of the court on the aspect of the occurrence for that which defendant himself did at the time except to and assign error as prejudicial. The Constitution, as I construe it, gives this Court no such supervisory power over the Superior Court — a court created and vested by the Constitution with power alone to try cases like the present. I will now confine myself to the only material exception and assignment of error as to the charge of the court below, upon which a majority of this Court grants a new trial. The court below charged the jury as follows: "In this case I do not see And cannot arrive at any conclusion that would lead me to leave with you the question of his guilt upon a charge of second degree murder or manslaughter ; I therefore charge you that you can return hut one of two verdicts in this case, either murder in the first degree or not guilty.” I cannot construe the evidence in any other light than the careful and learned judge who tried the action in the court below did; that there was no evidence of murder in the second degree or manslaughter. It has always been recognized in this jurisdiction that this Court in its discretion can say what evidence is sufficient' — more than a scintilla— in civil or criminal actions to be submitted to the jury. Out of this well-settled principle the procedure in civil actions is regulated by C. S., 567, known as the Hinsdale Act, in criminal actions, C. S., 4643, known as the Mason Act, spoken of as demurrer to the evidence. This power or discretion in the Superior and Supreme Appellate Court, should be exercised with care and caution. Recently the majority of this Court, *585 after a most careful consideration, said in S. v. Montague, ante, p. 20, that the circumstantial evidence in that case was not sufficient to have been submitted to a jury. Whether there be any evidence is a question for the judge; whether sufficient evidence for the jury. Wittkowsky v. Wasson, 71 N. C., 457 ; Ridge v. R. R., 167 N. C., pp. 510-517. The principle being established, what is the law? C. S., 4200, is as follows: “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture or by any other hind of wilful, deliberate and premeditated hilling, or 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. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the State prison.” (Italics mine.) C. S., 564, is, as follows: “No judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.” (Italics mine.) Under C. S., 564, supra, it is well settled for nearly a century and a third that where there is sufficient evidence to be submitted to the jury, that a judge cannot express an opinion whether a fact is fully or sufficiently proven. This is the sole province of the jury, but whether there is or is not sufficient evidence is one solely for1 the court, and has been for all time exercised by the trial court and upon proper exception and assignment of error considered in this Court. C. S., 4642, is as follows: “Nothing-contained in the statute law dividing murder into degrees shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.” This section has been construed merely to mean that when the jury renders the verdict, the degree must be stated. In S. v. Ross, 193 N. C., at p. 26, construing this section, it is said: “Again, in the record, as first certified to this Court, it is stated that the jury returned the following verdict: ‘That the said W. L. Eoss is guilty of the felony and murder in manner and form as charged in the bill of indictment.’ It was said in S. v. Truesdale, 125 N. C., 696 , that, since the act of 1893, now C. S., 4200 and 4642, dividing murder into two degrees, first and second, a verdict which fails specifically to find the prisoner guilty of murder in the first degree, will not support a death sentence. See, also, S. v. Murphy, 157 N. C., 614 .” *586 In S. v. Spivey, 151 N. C., at p. 686, it is said: “Under the construction of the statute by this Court in S. v. Gilchrist, 113 N. C., 673 , and S. v. Norwood, 115 N. C., 789 , the third section (now section 3271, Revisal), (C. S., 4642), does not give jurors a discretion, when rendering their verdict, to determine of wbat degree of murder a prisoner is guilty. They must render a verdict according to the evidence; and, believing a prisoner guilty, beyond a reasonable doubt, of murder in the first degree, it is their duty so to find, however much inclined to show mercy by rendering a verdict of a lesser offense. Their obligation in that respect has not been changed by the statute, and it is the same that it was upon the trial for homicide before its enactment, and the question was whether the prisoner was guilty of murder or manslaughter.” S. v. Covington, 117 N. C., 834 . In S. v. Wiseman, 178 N. C., at p. 795, it is said: “It is one of those cases in which there was no doubt as to tbe manner of tbe killing, and tbe court might well have charged tbe jury, though it did not do so, that Tbe prisoner was guilty of murder in tbe first degree or nothing.’ Tbis would have been strictly in accordance with tbe testimony and numerous precedents. S. v. McKinney, 111 N. C., 684 ; S. v. Cox, 110 N. C., 503 ; S. v. Byers, 100 N. C., 512 ; S. v. Jones, 93 N. C., 611 , and numerous others.” In S. v. Spivey, supra, at p. 686, continuing the quotation from that opinion in the main opinion, it says more, as follows: "It becomes the duty of the trial judge to determine, in the first instance, if there is any evidence or if any inference can be fairly deduced therefrom, tending to prove one of the lower grades of murder. This does not mean any fanciful inference tending to prove one of the lower grades of murder; but, considering the evidence ‘in the best light’ for the prisoner, can the inference of murder in the second degree or manslaughter be fairly deduced therefrom.” (Italics mine.) Weighed by the above decision, I think that the inference in the present case as to a lower grade of murder, in the language of the Spivey case, fanciful. The defendant introduced no evidence. I think the evidence for the State found to be true beyond a reasonable doubt by the jury showed (1) a wilful, deliberate and premeditated killing; (2) committed in the attempt to perpetrate rape. What is the evidence, carefully taken from the record? All the witnesses, including the physician who examined defendant, testified that in their opinion defendant knew right from wrong a.t the time and bad sufficient intelligence to know right from wrong. S. v. Potts, 100 N. C., 457 ; S. v. Journegan, 185 N. C., 700. Alexander Tedder, a farmer, lived near Fremont, in Wayne County. He was the father of eight children. The oldest, Beulah Tedder, 14 years of age, weighed about *587 115 pounds; about dark, 6 o’clock, on the ’afternoon of 8 Decemher, the father sent her with Cora Eeid to the latter’s borne, some 2,200 feet away, to get some home-made syrup. The two in going the customary way passed defendant’s borne, about 1,200 feet from the Tedder borne. Tbe defendant’s borne was 900 feet from the Eeid borne. Along the route was a peach orchard and a pine thicket. Beulah bad been gone about three-quarters of an hour, and looking out for bis daughter’s return, and seeing an object in the path about 35 or 40 yards from bis bouse, the father went to it and found bis daughter lying there dead. There was considerable blood at the place she was lying. She was flat on her back and her face slightly to one side, one of her legs was up under her and her dress turned backward toward her shoulders. There were two cuts on her left cheek. Her neck was cut all the way around the front. Her throat was cut. There were several cuts on her left band, all across the fingers, one across the inside of her band; some on the upper part of her arm, and in her right band the flesh was torn entirely away from the bone and banging down across her fingers. Tbe little girl bad not been ravished. Immediately steps were taken to find the murderer. Tbe sheriff of the county and others started an investigation. Tbe facts disclosed that Beulah :and Cora Eeid, in going to the latter’s home for the syrup, passed defendant’s home. Beulah, after remaining at Cora Eeid’s home about 5 minutes, left with a jar of bome-made syrup, going back toward her home in the direction of defendant’s home. About 25 or 30 minutes after Beulah left Cora Eeid’s home, defendant came there and: remained 2 or 3 minutes and left. He bad on a dark suit and a pair of overalls. Tbe pathway for Beulah to go and return is along the edge of the woods in which are growing many small pines and bushes. In making her return home, in the woods was found where the blood started. It looked like a man and woman bad been struggling on the ground; prints of their heels could be seen. Tbe prints of people’s toes and elbows were apparent at the scene of the struggle. Tbe struggle appeared to be over an area of some 10 or 12 feet, and was about 10 steps from the path entering the roadway from defendant’s bouse, some 125 yards up the path. At the scene of the struggle the bark was broken on a, tree which looked as if the fingers bad grabbed the tree to bold on. At the scene of the struggle the half-gallon of syrup was found and the little girl’s bonnet. Boot tracks, and those apparently made by a girl, were observed. From this first struggle to where Beulah was found dead some blood along the pathway for a distance of 125 to 140 yards was found. Along the way from the first struggle were found signs of a. girl’s tracks as well as boot tracks following her to a point about 30 steps from the road leading toward the girl’s home, and there it looked as if the man broke and ran across the field and the girl pro- *588 eeeded toward her borne. Tbe person in the boots would apparently catcb up with the girl and another struggle would ensue. Tbis was along a route 125 to 140 yards from the starting point. Going toward the Reid borne, down the path, was found from where the little girl was lying in the little path, blood on down to the edge of the road; it dripped along to the peach orchard. In the path that cut the corner off the peach orchard was found where there bad been a struggle, and there was found a puddle of blood; a little further on, going in the direction of the woods, was found where there bad been another struggle, and in the woods, the path going in, was found that there bad been a struggle in the woods, and there the last blood was found; that’s where the blood started in the woods, where the first struggle commenced, as heretofore set forth. From ascertaining tbe above facts, tbe officers went to .defendant’s home, followed tbe running tracks, and a knife was found under tbe edge of tbe bouse. Tbis knife was in tbe shape of a woman’s leg, and bad a long, keen blade; it was very sharp and bloody. Upon searching tbe bouse a pair of boots and overalls, blood apparently fresh on both, were found. Tbe overalls were banging in a closet. Tbe defendant was arrested and examined, and there was found a cut on bis band, tbe wound apparently a fresh one, and bleeding, and blood on bis pocket. Tbe defendant said be bad some boots, and that be bad been rabbit bunting that day, and bad gotten blood on bis boots off of tbe rabbit, and tbe overalls which be bad left, at home bad been worn by him while dressing the rabbit, and if there was blood on them that it'must have come from tbe rabbit. Tbe officers went back to tbe scene of tbe struggle and fitted tbe boots in tbe tracks and found that tbe boots fitted exactly into tbe tracks, and fitted tbe running tracks. Tbis test was made at several places, and in each place tbe boots fitted into tbe tracks. Frank Aycock, on tbe morning after tbe murder, made an examination. He testified “That tbe patb from tbe Tedder bouse to tbe road is about 200 feet, and that 110 feet from tbe bouse on tbe patb be found a large pool of blood, which be thought was tbe place they found tbe child. One hundred and eighty-five feet further along tbe patb, away from tbe home, be found another large pool of blood. That near tbe turn of tbe cartway leading to tbe Tedder home is a peach orchard, and that near tbe peach orchard be found tbe second pool referred to, and there was a little blood on tbe patb between tbe two pools of blood referred to; that further away from tbe bouse, on tbe cartway is a patch of woods, and in tbe patch of woods, and about 15 feet off tbe cartway, was another pool of blood, and in tbe pine thicket there was a small amount of blood on tbe leaves. He also saw a bonnet near tbis place.” Tbe confession of defendant to Dr. W. C. Linville, admitted in evidence, was as follows: “I asked him what caused him to do tbis, and be *589 said ‘I don’t know’; and I asked bim if be ent tbe girl immediately after be came up with ber, and be said be did not, but said be seized ber around tbe waist, and sbe fougbt bim off, and ran from bim, and after be caugbt up with, ber be cut her. Tbat was about all be said. He did say be cut ber because sbe said sbe was going to tell ber father.” First, all tbe evidence was to tbe effect tbat it was a wilful, deliberate and premeditated killing. In S. v. Daniel, 139 N. C., at p. 554, quoting from Kerr on Homicide, see. 72, it is said: “ ‘Tbe celerity of mental action is sucb tbat tbe formation of a definite purpose may not occupy more tban a moment of time, benee tbe important question in sucb a case is to determine wbetber tbe external facts and circumstances, at tbe time of tbe killing, as well as before and after tbat time, having connection with, or relation to it, furnished satisfactory evidence of tbe. existence of a calm and deliberate mind on tbe part of tbe accused at tbe time tbe act was committed. If they show a formed design to take tbe life of tbe person slain, or to do bim serious bodily barm, which in its necessary or probable consequence may end in bis death, be is guilty of murder in tbe highest degree.’ ” “The formation of a definite purpose may not occupy more than a moment of time.” In S. v. Benson, 183 N. C., p. 795, it is said: “Premeditation means ‘thought of beforehand’ for some length of time, however short.” S. v. Walker, 173 N. C., 780 ; S. v. Holdsclaw, 180 N. C., 731 . “If the circumstances of tbe killing show a formal design to take life of deceased, the crime is murder in tbe first degree. S. v. Walker, supra; S. v. Cain, 178 N. C., 724 ; Michie, N. C. Code, 1927, at p. 1312, sec. 4200. Second, all the evidence was to the effect that the killing was committed in the attempt to perpetrate rape. Under the statute, this is murder in the first degree. The charge complained of in the main opinion giving a new trial is based on defendant’s confession, but that confession, analyzed, although in the latter part defendant says be cut her because she said she was going to tell her father, but the confession further says she fought him off and ran from him, and after be caught up with her be cut her. This, coupled with the other evidence, shows from beginning to end that it was in an attempt to perpetrate rape in the very teeth of the statute, and was murder in the first degree. Tbe killing was an incident to the attempt. It is contended in the main opinion tbat the confession indicated premeditation and deliheration, and this was a fact for the jury to determine and not for the court; that if they found be killed her beyond a reasonable doubt, with premeditation and deliberation, be would be guilty of murder in the first degree, but if they should not so find, be would be guilty of murder in the second degree. I cannot so construe the confession. To my mind sucb a construction is attenuated and fanciful, and I think there was no evidence *590 of second degree murder or manslaughter sufficient to be submitted to a jury. It was a continuous assault in .an attempt to commit rape, which by the statute is per se murder in the first degree. Even if the charge complained of was error, on all the facts and circumstances on the record, it was harmless. In the Spivey case the record discloses a murder by lying in wait or an attempt to commit arson, which by the statute is per se murder in the first degree. In such case, and in the present case rape, set forth in the statute, the State is not required to prove premeditation or deliberation. The manner of doing the act necessarily involves premeditation and deliberation. I have cited the law in regard to wilful, deliberate and premeditated killing, for on that aspect the confession of defendant is the sole ground on which the majority of this Court grants a new trial. The question of premeditation and deliberation, from defendant’s confession, I do not think arises. It is not sufficient to base any inference of murder in the second degree or manslaughter. So, conceding that the question of premeditation and deliberation is one for the jury, it is only so when there is any, or sufficient, evidence to present it. Defendant’s purpose, from all the evidence, was rape. He confessed to killing the little girl; he said that he seized her .around the waist; she fought him off and ran from him; he caught up with her and cut her because she said she was going to tell her father. This statement, taken “in the best light” for defendant, I can deduce therefrom, like the learned judge in the court below, no inference of murder in the second degree or manslaughter. Then again, the identity of the defendant being established by his confession, as well as circumstantial evidence, all leads to one conclusion — a continuous assault, and that he killed in an attempt to commit a capital offense — rape. Succinctly the facts: The details perhaps are unequalled in the annals of the State; where a white child, 14 years of age, made so heroic a fight with defendant, a negro man, for her virtue and honor, and won in the fierce battle. This little girl, about dusk, a December evening, was sent by her father to go with a woman living less than a half-mile away to get some home-made syrup. On the way the little girl passed defendant’s home. He saw her, and the lust of the jungle overpowered him. He armed himself with a sharp knife that had a long, keen blade. He lay in wait for her in the woods, watching for her on her return home. He sprang at her like a panther for the prey, and seized her around the waist.' The struggle of the child and man was terrific; they fought over an area of 10 or 12 feet. The struggle on the ground showed prints of their heels, toes, knees and elbows; the bark was broken on a tree, the appearance-of fingers grabbing the tree to hold on, blood was left from this fierce struggle, and the half-gallon of syrup and the little girl’s bon *591 net lay there. The little girl escaped, blood dripping along the way as she fled, and the man in boots pursued her, and another struggle and a puddle of blood, and then again she escapes, and the man in boots pursues her and a struggle again, then the boot tracks show where the defendant broke and ran, and the girl proceeds towards her home, but with her throat and neck cut all around and her arms and fingers cut up, and she falls in the home path and was there found by her father. In this bloody condition dead, but pure and white as the driven snow. This was the end of little Beulah Tedder and her heroic struggle. The identity of defendant was not disputed. He committed the foul deed in an attempt to ravish her, and the trail of blood and struggle from start to finish between defendant and the little girl was trailed some 125 or 140 yards. When his lust was foiled, defendant, with the sharp knife he carried with him, cut her throat. It was a continuous assault in an attempt to commit rape, and no evidence of second degree murder or manslaughter. Refinements and technicalities should be brushed aside and trials should be had on their merits. The trial in the lower court, under the facts and circumstances of this ease, should not be weighed in “gold scales,” but justice done to the dead as well as the living. There is no place in this civilization for lynch law, but orderly government must prevail, founded on common-sense and conditions that surround the actors. For the reasons given, I most earnestly dissent to awarding a new trial. I can see no precedent effected by sustaining the verdict and' judgment of the court below, but only an incentive that orderly government shall be supreme and the guilty punished. The courageous judge in the court below was firm to see that “When passion blows the breeze, Let reason guide the helm.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9812261. Public record. Not legal advice.