{ "id": 8627518, "name": "STATE v. ANNIE LAURIE GARDNER", "name_abbreviation": "State v. Gardner", "decision_date": "1948-03-17", "docket_number": "", "first_page": "567", "last_page": "574", "citations": [ { "type": "official", "cite": "228 N.C. 567" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "131 S. E., 743", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N. C., 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629365 ], "opinion_index": 0, "case_paths": [ "/nc/191/0378-01" ] }, { "cite": "109 S. E., 31", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N. C., 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655840 ], "opinion_index": 0, "case_paths": [ "/nc/182/0275-01" ] }, { "cite": "88 S. E., 477", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N. C., 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270188 ], "opinion_index": 0, "case_paths": [ "/nc/171/0328-01" ] }, { "cite": "193 S. E., 739", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611957 ], "opinion_index": 0, "case_paths": [ "/nc/212/0412-01" ] }, { "cite": "125 S. E., 190", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "188 N. C., 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654597 ], "opinion_index": 0, "case_paths": [ "/nc/188/0608-01" ] }, { "cite": "227 N. C., 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627106, 8627083 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/227/0650-02", "/nc/227/0650-01" ] }, { "cite": "225 N. C., 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611664 ], "opinion_index": 0, "case_paths": [ "/nc/225/0486-01" ] }, { "cite": "220 N. C., 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11302871 ], "opinion_index": 0, "case_paths": [ "/nc/220/0377-01" ] }, { "cite": "219 N. C., 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625033 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/219/0514-01" ] }, { "cite": "219 N. C., 15", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620542 ], "opinion_index": 0, "case_paths": [ "/nc/219/0015-01" ] }, { "cite": "216 N. C., 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610967 ], "opinion_index": 0, "case_paths": [ "/nc/216/0610-01" ] }, { "cite": "128 S. E., 730", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595513 ], "opinion_index": 0, "case_paths": [ "/nc/190/0062-01" ] }, { "cite": "95 S. E., 576", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "175 N. C., 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661927 ], "opinion_index": 0, "case_paths": [ "/nc/175/0709-01" ] }, { "cite": "193 S. E., 727", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614122 ], "opinion_index": 0, "case_paths": [ "/nc/212/0533-01" ] }, { "cite": "146 S. E., 227", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628234 ], "opinion_index": 0, "case_paths": [ "/nc/196/0556-01" ] } ], "analysis": { "cardinality": 794, "char_count": 19963, "ocr_confidence": 0.458, "pagerank": { "raw": 6.649530079248564e-07, "percentile": 0.9622595757513276 }, "sha256": "72c109539e0d335f073f0bcda0f43259ca9e8fa1ffec47ede67bc790f84a3264", "simhash": "1:bb7de556eea3c0be", "word_count": 3479 }, "last_updated": "2023-07-14T21:52:37.324265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. ANNIE LAURIE GARDNER." ], "opinions": [ { "text": "WiNBORNE,-J.\nDefendant in brief filed in this Court, expressly abandons her assignments of error based upon exceptions taken to denial of motion made when-the State first rested its case, and renewed at the close of all the evidence for judgment as of nonsuit on tbe charge of murder in the second degree. And the record shows no exception, or assignment of error based upon exception to the charge of the court to the jury.\nThe questions presented by defendant on this appeal are predicated upon exceptions (1) to rulings of the court in respect to each of three photographs offered by the State, (2) to the court interposing question as to how defendant struck deceased, (3) to the admission of evidence as to defendant showing a lack of remorse, and (4) to description of the room in which the fatal blow was inflicted.\nHowever, after careful consideration of each point so raised by defendant, prejudicial error is not made to appear.\n\u2022(1) Defendant makes practically the'same argument, and advances substantially the same reasons in her complaint as to the action of the trial judge in allowing the State to offer each of the three photographs, Exhibits S-I, S-2 and S-4. It is argued and contended that there is no sufficient proof of the authenticity or accuracy of the photographs, that they are not material and relevant, that they were not used to illustrate the witness\u2019 testimony, and that they are solely calculated to excite prejudice against defendant, \u2014 particularly since women were on the jury.\nThe decisions of this Court uniformly hold that in the trial of eases, civil \u00f3r criminal, in this State, photographs may not be admitted as substantive evidence, Honeycutt v. Bride Co., 196 N. C., 556, 146 S. E., 227; S. v. Perry, 212 N. C., 533, 193 S. E., 727, hut that where there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy. S. v. Jones, 175 N. C., 709, 95 S. E., 576; Elliott v. Power Co., 190 N. C., 62, 128 S. E., 730; S. v. Holland, 216 N. C., 610, 6 S. E. (2d), 217; S. v. Wagstaff, 219 N. C., 15, 12 S. E. (2d), 657; S. v. Miller, 219 N. C., 514, 14 S. E. (2d), 522; S. v. Shepherd, 220 N. C., 377, 17 S. E. (2d), 469; S. v. Mays, 225 N. C., 486, 35 S. E. (2d), 494; S. v. Stanley, 227 N. C., 650, 44 S. E. (2d), 196.\nIn the Elliott case, supra, the Court says: \u201cPlaintiff excepted-because certain pictures were submitted to the jury. All of these pictures were used to explain the witnesses\u2019 testimony to the jury. It was not error for the court to allow the jury to consider the pictures for this purpose and to give them such weight, if any, as the jury may find they are entitled to in explaining the testimony.\u201d\nOrdinarily photographs are competent to be used by, a witness to explain or to illustrate anything it is competent for him to describe in words.\nTbe accuracy of a photograph must be shown by extrinsic evidence that the photograph is a true representation of the scene, object or person it purports to portray. 20 Am. Jur., Evidence, Sec. 730; S. v. Mitchem, 188 N. C., 608, 125 S. E., 190; Pearson v. Luther, 212 N. C., 412, 193 S. E., 739. 32 C. J. S., Evidence, Sec. 715. Wigmore on Evidence, 3rd Ed., Vol. 3, Sec. 793.\nThe correctness of such representation may be established by any witness who is familiar with the scene, object, or person portrayed, or is competent to speak from personal observation. It is not necessary to prove this fact by the photographer who took the photograph. Banc v. R. R., 171 N. C., 328, 88 S. E., 477; White v. Hines, 182 N. C., 275, 109 S. E., 31; S. v. Matthews, 191 N. C., 378, 131 S. E., 743; S. v. Stanley, supra.\nWhether there is sufficient evidence of the correctness of a photograph to 'render it competent to be used by a witness for the purpose of illustrating or explaining his testimony is a preliminary question of fact for the trial judge. S. v. Matthews, supra.\nMoreover, if the testimony sought to be illustrated or explained be relevant and material to any issue in the case, the fact that an authenticated photograph is gory, or gruesome, and may tend to arouse prejudice will not alone render it incompetent to be so used.\nIn the light of these principles, applied to the present ease, it appears from the record th\u00e1t the evidence as to the accuracy of the photographs to portray the condition of the house after the homicide, the body as found, and the wound on the body, is sufficient to render them competent for use in illustrating the testimony of the witnesses testifying to their accuracy, for which purpose their admission was expressly limited; that they were not admitted as substantive evidence; and that they were relevant to material matters in issue in the case. But the record indicates a paucity of use for the purpose for which they were offered. Nevertheless, it does not appear on this record that this was prejudicial error.\nAs to the relevancy of the photographs: The testimony of the witnesses as to the bloody condition of the room, and of the nature of the wound has relation to the character of the attack made by defendant upon the deceased, and that has bearing on the question of self-defense upon which defendant relied. It tends to indicate that she used excessive force, and that the attack was vicious. Thus the photographs were competent for use in illustrating this testimony. And the photograph, Exhibit S-2, was competent for use in illustrating the testimony of the witness bearing upon corpus delicti. See S. v. Miller, supra.\nMoreover, the fact that the photograph showing the wound, described by the doctor, was taken in the morgue, after the body had been cleansed, does not of itself make it incompetent for use in illustrating the testimony of the doctor. See Scott\u2019s Photographic Evidence, See. 661, at p. 576.\n(2) Regarding the assignment of error based upon the court interposing questions as to how defendant struck deceased: The complaint here is that \u201cthe trial judge not only put the words in the witness\u2019 mouth by saying \u2018Give a step like that and hit him,\u2019 but then asked how by demonstration, saying \u2018Give a step like that and hit him.\u2019 \u201d It is contended that in this way the trial judge expressed or manifested an opinion\n\u25a0 forbidden by law. However, the regret of inability \u201cto bring a sound movie and establish before the appellate court the movements of the judge as well as his words\u201d in this incident, seems to be a concession by defendant that the record does not show error. It discloses only the words, leaving all else to imagination. Hence error is not made to appear here.\n(3) In reference to the admission of evidence as to defendant showing a lack of remorse: It may be conceded that this question is improper, and that objection to it should have been sustained. Yet when it is considered with the testimony immediately preceding, we fail to find in it error of sufficient prejudicial import to warrant a new trial.\n(4) The assignment of error directed to the description of the room in which the fatal blow was inflicted may not be sustained. The evidence indicated great flow of blood immediately following the blow, and that had bearing upon the character of the wound inflicted by defendant upon deceased, and was relevant to be considered by the jury on defendant\u2019s plea of self-defense. Moreover, other evidence of like purport was admitted without objection.\nFinally, after full consideration of every reason advanced for error, assigned on this appeal, we find no cause to justify the disturbing of the verdict rendered. Hence, in the judgment below there is\nNo error.", "type": "majority", "author": "WiNBORNE,-J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State. \u00a1", "George Pennell for defendant, appellant." ], "corrections": "", "head_matter": "STATE v. ANNIE LAURIE GARDNER.\n(Filed 17 March, 1948.)\n1.Criminal Law \u00a7 38d\u2014\nPhotographs are not competent as substantive evidence but may be used by a witness only for the restricted purpose of explaining or illustrating his testimony when description in words of the scone, object or person represented would be competent.\n2. Same\u2014\nThe accuracy of .a photograph as a true representation of the scene, object or person it purports to portray must be 'shown by extrinsic evidence, but it is not required that this be established by the photographer, it being sufficient if it is established by any witness familiar with the scone, object or person portrayed.\n3. Same\u2014\nWhether there is sufficient extrinsic evidence to establish the accuracy of a photograph is a preliminary question of fact for the trial judge.\n4. Same\u2014\nThe fact that an authenticated photograph competent for the purpose of illustrating or explaining- the witness\u2019 testimony is gory, or gruesome or may tend to arouse prejudice does not render the photograph incompetent.\n5. Same: Homicide \u00a7 22\u2014\nThe State\u2019s evidence tended to show that defendant stabbed deceased in the neck with a knife, inflicting mortal injury. Defendant pleaded self-defense. Held: It was competent for witnesses to testify as to the bloody condition of the room after the assault and as to the nature of deceased\u2019s wound as tending to show that defendant used excessive force and that 1he attack was vicious, and therefore photographs of the room as it appeared immediately after the attack and photographs of the body of deceased as it had been turned over where deceased fell after the attack, are competent for the purpose of explaining and illustrating the witnesses\u2019 testimony in these respects.\n6. Same\u2014\nThe fact that a photograph showing the wound described by the doctor was taken in the morgue after the body had been cleansed, does not of itself render the photograph incompetent for use in illustrating the testimony of the doctor.\n7. Criminal Law \u00a7\u00a7 50d, 81b\u2014\nThe record disclosed that a State\u2019s witness testified on cross-examination that he saw defendant \u201cmake a nm and her hand go that way.\u201d The court interposed, \u201cWhat do you mean by \u2018make a run\u2019? Give a step like that and hit him?\u201d A. \u201clie got up, she took a step and hit him.\u201d Held: The record discloses only the words of the court, and does not affirmatively disclose any demonstrative action by the court constituting an expression or intimation of opinion on the evidence forbidden by law, and defendant\u2019s exception thereto cannot be sustained.\n8. Criminal Law \u00a7 81c (3) \u2014\nThe State\u2019s witness testified that after the homicide defendant said, \u201cshe would have cut his damned head off if they had let her alone, \u2014 that she didn\u2019t care,\u201d and then, in response to a question by the solicitor as to whether defendant expressed any remorse answered \u201cNot any.\u201d Held: Conceding that defendant\u2019s objection to the question as to whether defendant expressed remorse should have been sustained, the testimony in regard thereto, when considered with the testimony immediately preceding, was not of sufficient prejudicial import to warrant a new trial.\n9. Homicide \u00a7 22\u2014\nWhere defendant pleads self-defense, testimony as to the bloody condition of the room immediately after defendant\u2019s fatal attack on deceased is competent as bearing upon the character of the wound inflicted.\n10. Criminal Law \u00a7 81c (3) \u2014\nException to the admission of evidence cannot be sustained when other evidence of like import is admitted without objection.\nAppeal by defendant from Phillips, J., at November Term, 1947, of BtJNCOMB\u00cd!.\nCriminal prosecution upon indictment charging that defendant \u201clate of Buncombe County . . . with force and arms, at and in said county, unlawfully, willfully and feloniously, of her deliberate and premeditated malice aforethought, did kill and murder one Nathaniel Barnard, contrary to the form of the statute,\u201d etc.\nThe solicitor announced in open court, upon the call of the case for trial, that the State elected not to try defendant on the charge of murder in the first degree, but for murder in the second degree or manslaughter as the evidence and the law might justify.\nDefendant pleaded not guilty, and defended upon the ground of self-defense.\nOn the trial in Superior Court the State offered evidence. tending to show these facts: That Nathaniel Barnard, called Nate Barnard, who was tall and weighed about 230 pounds, came to his death on the night of 25 October, 1947, as result of stab wound in his neck inflicted by a knife in the hands of defendant, Annie' Laurie Gardner, at the home of James Roberts, her brother-in-law, at Dula Springs in Buncombe County, North Carolina; that the Roberts home is a one-room house and in it were a table, a stove, three beds and three chairs; that defendant and her sister and Nate Barnard came to the Roberts home about eight o\u2019clock in the evening; that defendant and Nate, who had been \u201cgoing together\u201d about two years, were \u201carguing\u201d when they got there; that Nate sat down on the bed and they \u201cgot to arguing and talking and got into a fight there\u201d; that defendant hollered out \u201cHe hit me\u201d; that James Roberts then took Nate \u201cout of doors,\u201d but he later came back in the house; that defendant didn\u2019t say anything to him, but she was \u201cjust a-crying\u201d then; that Nate was sitting on the bed, and defendant was behind her sister and \u201ckept sidling around,\u201d and Nate said something and got up, and she said, \u201cI am getting tired of your foolishness; you have run over me about long enough,\u201d and she made \u201ca run\u201d and hit Nate, and blood spurted from his neck, and he staggered toward the door and went down the hill and fell about seventy-five feet from the house and died there; and that blood was \u201call in the house.\u201d\nThe State offered other evidence in ampliation of the above narrative of events leading up to and culminating in the homicide. It is unnecessary for purpose of this appeal to give more detailed recital. Such of the evidence as is pertinent to presentation of assignments of error follows:\nThe record shows that for the purpose of illustrating testimony of certain witnesses, and over objections and exceptions duly made and taken by defendant, the State offered three photographs, to wit: (1) Exhibit S-l, identified by the State\u2019s witness James Roberts as fairly representing the house and the condition of it after deceased \u201chad got up and gone out,\u201d and also identified by deputy sheriff Burleson, witness for the State, as fairly representing the condition of the house when he arrived there that night, \u2014 after the homicide occurred. The witness Roberts introduced by the State had testified without objection of defendant that he saw blood spurting from the neck of Nate, and that \u201cthere was blood all in the house.\u201d And the deputy sheriff had testified, over objection of defendant, that when he went there, \u201cthe house was as bloody a place as you could see. You had to walk in the blood.\u201d And later in the course of the trial Dr. P. R. Terry, also witness for the State. testified without objection by defendant, that when he wont into the house that night: \u201cI found the floor of the house covered with blood, blood on the walls and blood on the door coming out of the house, and going down to where the body was lying \u2014 tracks of blood all the way down there.\u201d There is no evidence as to who took the photograph.\n(2) Exhibit S-2, identified by deputy sheriff Burleson, State\u2019s witness, as fairly representing the circumstances under which he found the deceased when he reached the scene, except that deceased was lying on his face, \u2014 the picture being made after the body had been turned over on its back, and also identified by Dr. Terry as fairly representing the body and its surroundings as he found it when he arrived there. The deputy sheriff had testified that on the night of the homicide he had found deceased lying on his face, that the body was turned over \u2014 he believed by the coroner, and that this was about 75 feet from the Eoberts house. And Dr. Terry then testified that when he got there he found \u201ca Negro man lying on his back by the side of the path . . . 75 to 100 feet below the house\u201d; that he had a wound in his right neck; and that \u201che was dead when I arrived there.\u201d There is no evidence as to who took the photograph.\n(3) Exhibit S-4, identified by Dr. Terry, State\u2019s witness, as fairly representing the body of the deceased and the wound he had described. The doctor had testified that in his opinion Nathaniel Barnard died from hemorrhage from the wound in the neck. Quoting him, \u201cI have a picture that shows how large a wound better than I can describe. It was in the right neck ... a stabbing and cutting wound. What I mean, stab of the knife and she pulled it out and cut the wound and made it larger, just above the right clavicle. . . . This knife wound went in and severed the subclavian vein or artery . . . and it punctured the inner lobe of the lung . . . went in there two or three inches ... a wound like that with a terrible hemorrhage like that the man couldn\u2019t live over 4 or 5 minutes.\u201d The State seems to concede that this photograph was taken in a morgue, \u2014 showing a wound in the right neck. There is no evidence as to who took it.\nWhen the first of the photographs was offered by the State, the trial judge gave this instruction to the jury: \u201cYou will not consider the photograph as substantive evidence, \u2014 it is not competent for that purpose. It is only competent, and the court limits the evidence in the way of a photograph to illustrating the testimony of the witness, and it is a question for you as to whether or not it does illustrate his testimony, and you will receive it and consider the photograph in no other way other than as tending to illustrate the testimony of the witness, and not as substantive evidence.\u201d Defendant again excepts.\nLike instructions were given wben each, of the other two photographs was offered by the State, and in each instance defendant excepted.\nThe record also shows that during the cross-examination of James Roberts, witness for the State, he had stated that defendant said, \u201cYou have run over me long enough; I have took enough of your foolishness\u201d and that then he \u201csaw her make a run and her hand go that way,\u201d the court interposed: \u201cWhat do you mean by 'make a run\u2019 ? Give a step like that and hit him ?\u201d Defendant excepts. A. \u201cHe got up, she took a step and hit him.\u201d Motion to strike. Denied. Defendant excepts.\n' The record further shows that in the course of the direct examination of deputy sheriff Burleson, after he had related a conversation with defendant later in the night of the homicide, he testified: \u201cShe said -she would have cut his damned head off if they had let her alone, \u2014 that she didn\u2019t care.\u201d Then the solicitor asked the witness this question: \u201cDid she express any remorse for having cut him?\u201d, to which the witness answered \u201cNot any.\u201d\nDefendant\u2019s objection to the question, aptly made, was overruled, and her motion to strike the answer was denied. She excepted to each ruling.\nAnd the record shows exception by defendant to the testimony of deputy sheriff Burleson that \u201cthe house was just as bloody a place as you could see. You had to walk in the blood.\u201d\nDefendant, having reserved exception to denial of her motion, made when the State first rested, for judgment as of nonsuit on the charge of murder in the second degree, offered evidence tending to show that she is of good character, and she, as witness,in her own behalf, gave her version of events leading up to and culminating in the stabbing of Nate Barnard, and tending to support her plea of self-defense.\nThe State offered testimony in rebuttal.\nAt the close of all the evidence defendant renewed her motion for judgment as of nonsuit on the charge of murder in the second degree, and excepted to the denial of it.\nYerdiet: Guilty of manslaughter.\nJudgment: Confinement in the Central State Prison at Raleigh, North Carolina, for a term of not less than seven nor more than twelve years.\nDefendant appeals therefrom to Supreme Court and assigns error.\nAttorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State. \u00a1\nGeorge Pennell for defendant, appellant." }, "file_name": "0567-01", "first_page_order": 613, "last_page_order": 620 }