State v. Cutshall

189 S.E.2d 176 (1972)

281 N.C. 588

STATE of North Carolina v. Leonard H. CUTSHALL.

No. 53.

Supreme Court of North Carolina.

June 16, 1972.

*177 Robert Morgan, Atty. Gen., by Edwin M. Speas, Jr., Associate Atty., Raleigh, for the State.

Ronald W. Howell, Marshall, for defendant.

HIGGINS, Justice.

The Court is now reviewing a case in which the evidence has been heard by three juries. The first jury was discharged by the trial judge before verdict, upon a finding that the defendant had tampered with one of the jurors. At the next term a jury summoned from Buncombe County heard the evidence, returned a verdict finding the defendant guilty, and recommended his punishment be imprisonment for life. This Court granted a new trial because of error in permitting the State to impeach a defendant's witness by showing he had made contradictory statements on a collateral matter. This Court is now conducting its second review. The former opinion settled all except a few new questions which arose at the last trial.

The record of the case on appeal contains three hundred and seventy-five pages. The defendant entered three hundred and fifty-six exceptions and brings them here for review under forty-three assignments of error.

The evidence, in short summary, disclosed that about 11:30 p.m. on January 30, 1970, Blanche Gentry Cutshall, the divorced wife of the defendant Leonard H. Cutshall, had been to Greeneville, Tennessee, with her friend, the deceased Richard Jack Reeves. The two were riding in the Ford automobile owned by the deceased but being driven by the witness. The deceased was on the passenger side of the front seat. As the witness and the deceased approached the home of the deceased, the witness observed that the lights *178 of an automobile had been following them for some distance. She stopped on the side of the road, the following car (a 1964 black Oldsmobile) drove alongside, and the driver who was alone in the Oldsmobile fired a number of gunshots, killing Reeves instantly. The automobile sped away. The witness identified the defendant as the lone occupant of the Oldsmobile and the one who fired the fatal shots. The pathologist testified that death was caused by gunshot wounds. The corroborating evidence disclosed the defendant owned a 1964 black Oldsmobile and a repeating rifle of the caliber matching the bullets found in the Ford automobile and the empty shells found beside it which apparently were ejected as the shots were fired.

Only three persons were at the scenethe witness, the deceased, and the defendant. The witness gave evidence clearly identifying the accused as having fired the fatal shots. The defendant did not testify. He did, however, offer two or three additional witnesses not heard in the former trials whose evidence tended, albeit somewhat loosely, to corroborate his evidence of alibi.

Although many exceptions and assignments of error were entered, the defendant simplifies our task by the two concluding sentences from his lengthy brief. "If the evidence for the State is taken as true and all inconsistencies resolved in its favor, then there would obviously be enough evidence to go to the jury. The defendant does contend, however, that the errors herein above discussed with respect to the admission of the evidence, and the selection of the jury constitute prejudicial error and demand that the defendant be given a new trial."

Due to the prior trials and the widespread publicity, the court on motion of the State was justified in ordering the trial jury drawn from another county. G.S. § 9-12. So the writ of venire facias to Avery County was within the sound discretion of the trial judge. State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123; State v. Childs, 269 N.C. 307, 152 S.E.2d 453. The court ordered the "whole panel" method of selecting the jury. The defendant's objections thereto are not sustained. State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410; State v. McNeil, supra, 277 N.C. 162, 176 S.E.2d 732; State v. Perry, supra.

The trial jury was selected, empaneled, heard the evidence, the argument, the court's charge, returned its verdict, and was discharged. The court imposed judgment, the defendant gave notice of appeal, and the court adjourned. Thereafter, defense counsel attempted to raise some question with respect to the method of drawing and summoning the jurors from Avery County. The defense counsel filed affidavits and moved before the trial judge at his office in Charlotte that the verdict be set aside and a new trial be ordered. Judge Grist held, and we think properly so, that he was without jurisdiction to hear the motion. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Grundler, 251 N.C. 177, 111 S.E.2d 1; State v. Arthur, 244 N.C. 586, 94 S.E.2d 648; State v. McLamb, 208 N.C. 378, 180 S.E. 586.

We have examined the court's rulings on evidence and the charge to the jury. Nowhere do we find any ground which would justify another trial.

No error.