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AMOS BALDWIN, JR." ], "opinions": [ { "text": "Husiuns, J.\nOn motion of defendant a special venire of 150 persons had been summoned from Person County and was present in court when defendant was arraigned. Upon arraignment the solicitor read the bill of indictment and addressed the prisoner as follows: \u201cHow say you, Amos Baldwin, Jr., are you guilty of the felony of murder wherein you stand indicted or not guilty?\u201d The solicitor then addressed the court and' said, \u201cThe defendant stands mute; if your Honor please, I would like the court to enter a plea of not guilty for him.\u201d The defendant, speaking for himself, answered, \u201cNo sir, 1 have to plead guilty, your Honor.\u201d Defense counsel thereupon said, \u201cMotion.\u201d The motion was denied, and the -court entered a plea of not guilty for the defendant. Defendant assigns as error the denial of his motion.\nAs shown by the record, no grounds for the \u201cmotion\u201d were stated- In a conference at the bench defense counsel advised the court \u201cthat the entire jury panel had heard the defendant and that motion as for nonsuit,should be allowed.\u201d In his brief counsel refers to \u201cdefendant\u2019s motion for a mistrial made during the arraignment.\u201d It is obvious that defendant\u2019s motion \u2014 by whatever name it may be called \u2014 was not in order at that point. No plea had been entered, no jury had been impaneled, and no evidence had been offered. Furthermore, defendant\u2019s position is not strengthened by treating \u2014 as we do \u2014 the motion as one for continuance on the ground that defendant\u2019s remarks had prejudiced his case with the prospective jurors then present in court so that he could not obtain a fair trial. This is true because no prejudice is shown. There was no challenge to the array before plea as there might have been. State v. Rorie, 258 N.C. 162, 128 S.E. 2d 229; State v. Corl, 250 N.C. 258, 108 S.E. 2d 615. The jurors were not questioned as to whether they heard defendant\u2019s unsolicited, spontaneous utterance and were biased as a result. None were challenged for cause or peremptorily on that ground. If defendant exhausted his peremptory challenges, the record fails to show it. Objection to the special venire was waived by failure to challenge the array (State v. Kirksey, 227 N.C. 445, 42 S.E. 2d 613); and defendant may not object to the acceptance of individual jurors when he has failed to exhaust his peremptory challenges. State v. Anderson, 228 N.C. 720, 47 S.E. 2d 1; State v. McKethan, 269 N.C. 81, 152 S.E. 2d 341. How, then, can it be determined if the jurors who served in this case heard the defendant's statement and, if so, were prejudiced thereby? The record fails to show that any juror was accepted to which defendant had legal objections upon any ground. The judge in his discretion overruled the motion and entered a plea of not guilty. His action in that respect effectively removed the slightest suggestion of prejudice which might otherwise be attributed to the occurrence. We see no merit in this assignment, and it is overruled.\nDefendant\u2019s second assignment is based on the denial of his motion for continuance on the grounds of newly discovered evidence. Examination of the record is necessary to bring this assignment into focus.\nOn 18 June 1969, Charles B. Hodson, defendant\u2019s court-appointed counsel, filed affidavit and motion that, in his opinion, defendant did not know right from wrong and did not have sufficient mental capacity to undertake his defense. Counsel therefore moved that defendant be committed forthwith to the State Hospital at Goldsboro, North Carolina, for a period of sixty days for observation in accordance with the provisions of G.S. 122-91. The motion was allowed. At the end of the observation period, the superintendent of the hospital was directed to report his findings and recommendations to the Clerk of the Superior Court of Orange County as provided by law.\nIn obedience to said order, defendant was admitted, examined and observed for sixty days; and on 20 August 1969 a Clinical Summary containing findings and recommendations was submitted to the Clerk of the Superior Court of Orange County signed by E. C. Fowler, M.D., Clinical Director, and Bruce Kyles, M.D., F.A.P.A., Assistant Superintendent. Copies were furnished for the solicitor and defense counsel. This summary shows defendant has an IQ of 84 (indicating dull, normal intelligence) and contains the following pertinent information:\n\u201cFamily history said to be negative for nervous or mental disorder. . . . He denies DT\u2019s or other disturbances. . . . Hallucinations of any kind at any time were denied and none were apparent. . . . The content of thought showed no evidence of a thinking disorder, delusional material or any other abnormality. . . . Because of the complaint of blackout following drinking an electroencephalogram (EEG, brain wave test) was done. This was reported as normal and there is no indicated basis found for 'blackouts when drinking\u2019 other than the amount of liquor that would be taken. Skull x-ray was normal. . . . Subject stated that he had never had a nervous disorder and was not a regular drinker but did over drink when he would get upset. . . . and stated that there was nothing wrong with his mind but T was just out that day.\u2019 He states he had been upset as he stated he had found out his wife had been out all night and . . . that perhaps Mr. Cole, the victim, had been at the same party which was in that neighborhood.. Careful examination failed to elicit any significant disorder and subject understood his charge and his situation quite clearly.\nDIAGNOSIS: WITHOUT MENTAL DISORDER.\nDISPOSITION: 1. Return to court as able to stand trial.\n2. It is the carefully considered opinion of the medical staff of this hospital that Amos Baldwin, Jr. is able to plead to the bill of indictment against him. He knows right from wrong, is aware of the nature and probable consequences of the offense with which he is charged, and, in our opinion, is able to consult with counsel in the preparation of his defense.\u201d\nFollowing arraignment and in the absence of all prospective jurors, defense counsel moved for continuance on the ground of newly discovered evidence which had come to his attention on Sunday afternoon (the day before the arraignment). Counsel stated that he had been supplied \u201csome information regarding alcoholic pathological intoxication, which I understand, is a form of insanity which occurs with automatic behavior and frequently results in violence. . . .\u201d Counsel stated that he had previously caused Dr. Silas B. Coley, a psychiatrist with the Pathological Service Center of Hills-borough, North Carolina, to make a personal examination of the defendant \u201cand had him examine the report from Goldsboro.\u201d Dr. Coley, an expert in the field of psychiatry, then testified under oath that, based on his interview with defendant and on information supplied by defense counsel, he had come to the conclusion \u201cthat there was a possibility that at the time the crime of murder was alleged to have taken place, that the prisoner Amos Baldwin, Jr. was suffering from a state that is known as pathological intoxication.\u201d Dr. Coley stated that such condition was difficult to prpve without some documentation and that proof would be provided by an abnormal reading in an EEG (electroencephalogram) following the ingestion of alcohol; that a person 'suffering from pathological intoxication would be capable of complicated behavior including violent behavior and, based on the description of defendant\u2019s personality state and mental state at the time the crime was committed, \u201cit bears a strong resemblance to the condition of alcoholic pathological.\u201d Dr. Coley went on to state that from what he had seen of defendant \u201cit sounded like an abrupt change in personality\u201d and that he felt the psychiatric investigation made during the period defendant was under observation at Cherry Hospital in Goldsboro was incomplete in that it lacked the test of administering alcohol prior to the EEG which, if done, would reveal whether or not defendant was subject to pathological intoxication. Dr. Coley recommended that defendant be given an EEG following a test dose of alcohol \u2014 a neurological procedure that he was not in a position to perform. He stated that the professional fee for this procedure would be approximately $500.00.\nDefense counsel thereupon requested a continuance in order to carry out such an examination at public expense. The court in its discretion denied the motion, and this constitutes defendant\u2019s second assignment of error.\nThe record shows counsel had received a letter from Dr. Coley dated October 2, 1969, containing the doctor\u2019s conclusion that defendant possibly could have been suffering from pathological intoxication when the murder was committed and further shows that on Sunday afternoon at approximately one o\u2019clock counsel received a telephone call \u201cwhich brought forth new evidence in this matter.\u201d The content of the telephone call is not revealed. The only newly discovered evidence mentioned is information that defendant had not ingested a test dose of alcohol prior to being given the brain wave test at Cherry Hospital. The record is unclear as to when counsel received this information. Apparently that constitutes the newly discovered evidence relied on as the basis for \u00e1 continuance.\nA motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion. 2 Strong\u2019s N. C. Index 2d, Criminal Law \u00a7 91; Slate v. Moses, 272 N.C. 509, 158 S.E. 2d 617; State v. Stinson, 267 N.C. 661, 148 S.E. 2d 593; State v. Ferebee, 266 N.C. 606, 146 S.E. 2d 666; State v. Arnold, 258 N.C. 563, 129 S.E. 2d .229; State v. Stroud, 254 N.C. 765, 119 S.E. 2d 907; Cleeland v. Cleeland, 249 N.C. 16, 105 S.E. 2d 114. If, however, the motion is based on a right guaranteed by the Federal and State Constitutions, the motion presents a question of law and the order of the court is reviewable. State v. Phillip, 261 N.C. 263, 134 S.E. 2d 386; State v. Lane, 258 N.C. 349, 128 S.E. 2d 389; State v. Hackney, 240 N.C. 230, 81 S.E. 2d 778; State v. Gibson, 229 N.C. 497, 50 S.E. 2d 520. Defendant urges both abuse of discretion and denial of constitutional rights as error.\nThis continuance was sought on the opening day of a special term of court which had been ordered specifically for the trial of this case. On defendant\u2019s motion, a special venire of 150 jurors summoned from another county was present in court to insure him a fair trial by an impartial jury. Defendant and his counsel had known Dr. Coley\u2019s views on the subject of pathological intoxication since October 2, 1969. A copy of the Clinical Summary containing the findings and recommendations of Drs. Fowler and Kyles, based on a sixty-day observation of defendant at the State Hospital at Goldsboro, bad been in their possession since approximately 20 August 1969. If they desired a further examination of defendant for the purpose of making a brain wave test (EEG) after ingestion of alcohol, diligence required them to bring such desire to the court\u2019s attention before the term was set and the veniremen summoned. The judge was fully justified in his discretionary denial of a last-minute motion for continuance when it could and should have been made before extensive preparation for trial had been completed. No abuse of discretion has been shown.\nDue process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony. State v. Utley, 223 N.C. 39, 25 S.E. 2d 195; State v. Farrell, 223 N.C. 321, 26 S.E. 2d 322; State v. Whitfield, 206 N.C. 696, 175 S.E. 93; Powell v. Alabama, 287 U.S. 45, 77 L. ed 158, 53 S. Ct. 55; 2 Strong\u2019s N. C. Index 2d, Constitutional Law \u00a7 29; 14th Amendment, U. S. Constitution; Art. I, \u00a7\u00a7 11 and 17, N. C. Constitution.\nPathological intoxication has been described as follows:\n\u201cIn this syndrome the patient is apparently susceptible to extremely small amounts of alcohol and reacts to such amounts violently. Pie consumes a small amount of alcohol, perhaps 2 or 3 drinks, and develops total amnesia for the events that follow. He often carries out automatic behavior and sometimes this behavior is violent and dangerous to others. From this standpoint the illness is of considerable importance as' a medico-legal problem. While patients suffering from alcoholism are responsible for their acts, a patient with acute pathological intoxication is insane at the time and therefore not responsible for his acts.\n\u201cA peculiar and interesting relationship between pathological intoxication, psychopathic personality, and psychomotor epilepsy has been found by this writer, and the evidence, particularly electroencephalographic, points to the fact that the disorders are essentially identical. This interesting association of some cases of psychopathic personality with psychomotor epilepsy and pathological alcoholic intoxication indicates that pathological alcoholic intoxication and psychomotor epilepsy may be the same disease under two different names. In one case (psycho-motor epilepsy), psychomotor epileptic attacks simply occur spontaneously; in the other (pathological intoxication), psycho-motor attacks occur under the stimulus of alcohol.\u201d Thompson, Alcoholism, p. 467 (1966)\nSeveral states have adopted a so-called theory of diminished responsibility with respect to specific intent crimes and hold that defendant may offer evidence of an abnormal mental condition, although not sufficient to establish legal insanity, for the purpose of showing that he did not have the capacity to deliberate or premeditate at the time the homicide was committed \u2014 -elements necessary for a conviction of murder in the first degree. People v. Gorshen, 51 Cal. 2d 716, 336 P. 2d 492 (1959); Becksted v. People, 133 Colo. 72, 292 P. 2d 189 (1956); State v. Gramenz, 256 Iowa 134, 126 N.W. 2d 285 (1964); State v. Vigliano, 43 N.J. 44, 202 A. 2d 657 (1964). But California is apparently the only state which thus far recognizes pathological intoxication as a defense to first degree murder. People v. Castillo, 70 A.C. 274, 74 Cal. Rptr. 385, 449 P. 2d 449 (1969); People v. Conley, 64 Cal. 2d 310, 49 Cal. Rptr. 815, 411 P. 2d 911. The problem was discussed in Kane v. United States, 399 F. 2d 730 (9th Cir. 1968), cert, den., 393 U.S. 1057, 21 L. ed 2d 699, 89 S. Ct. 698 (1969). The Court held that the disability which prevented Kane from knowing the nature and quality of his action at the time he shot his wife was acquired from drinking liquor \u2014 an act within his own control \u2014 and could not be classified as a mental illness excusing criminal responsibility.\nThe general rule that voluntary drunkenness is no legal excuse for crime (State v. Potts, 100 N.C. 457, 6 S.E. 657; State v. Wilson, 104 N.C. 868, 10 S.E. 315) does not obtain with respect to crimes where, in addition to - the overt act, it is required that a definite, specific intent be established as an essential feature. State v. Murphy, 157 N.C. 614, 72 S.E. 1075. Murder in the first degree is a specific intent crime in that a specific intent to kill is a necessary-ingredient of premeditation and deliberation. Intoxication which renders an offender utterly unable to form the required intent may be shown as a defense. State v. Propst, 274 N.C. 62, 161 S.E. 2d 560 (murder in the first degree); State v. Arnold, 264 N.C. 348, 141 S.E. 2d 473 (attempting to burn a dwelling house); State v. Oakes, 249 N.C. 282, 106 S.E. 2d 206 (murder in the first degree); State v. Bunton, 247 N.C. 510, 101 S.E. 2d 454 (murder in the first degree); State v. Absher, 226 N.C. 656, 40 S.E. 2d 26 (murder in the first degree). Even so, where the facts show that the intent to kill was deliberately formed when sober and executed when drunk, intoxication is no defense to the capital charge. State v. Kale, 124 N.C. 816, 32 S.E. 892; State v. Murphy, supra.\n\u201cAll the authorities agree that to make such defense available the evidence must show that at the time of the killing the prisoner\u2019s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. . . . [A]nd where the evidence shows that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants to whatever extent in order to carry out the design will not avail as a defense.\u201d State v. Shelton, 164 N.C. 513, 79- S.E. 883; accord, State v. English, 164 N.C. 497, 80 S.E. 72; State v. Foster, 172 N.C. 960, 90 S.E. 785. See Annotation, \u201cModern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge,\u201d 8 A.L.R. 3d 1236, for a collection of cases in other jurisdictions relating to intoxication as a defense.\nHad the opinion of Dr. Coley been substantiated by a brain wave test following ingestion of alcohol by defendant, it would not have established an insanity defense in the usual sense nor a defense that defendant was so drunk that he was utterly unable to form the required specific intent to kill. It would have established only that, after the intent to kill was deliberately and premeditatedly formed when sober, defendant voluntarily drank enough intoxicants to produce pathological intoxication and then executed his murderous intent. This is not recognized in North Carolina as a valid defense to murder in the first degree. Hence denial of the motion for' continuance nowise impinged upon defendant\u2019s constitutional rights. Due process does not include the right to fish in psychiatric ponds for immaterial evidence.\nFor decisions in other jurisdictions relating to abnormal mental conditions and purposes for which evidence thereof may be considered, see Annotation, \u201cComment Note. \u2014 Mental or Emotional Condition as Diminishing Responsibility for Crime,\u201d 22 A.L.R. 3d 1228. Defendant\u2019s second assignment of error is overruled.\nAssignments of Error Nos. 3, 4 and 5 are not discussed in defendant\u2019s brief and are therefore deemed abandoned under Rule 28, Rules of Practice in the Supreme Court. State v. Strickland, 254 N.C. 658, 119 S.E. 2d 781; State v. Cole, 270 N.C. 382, 154 S.E. 2d 506; State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416.\nDefendant\u2019s Assignment No. 6 is based on Exception No. 6 which appears on page 75 of the Record in these words: \u201cThe defendant excepts to the entire charge of the court.\u201d The charge covers thirty-nine pages. In his brief, defendant asserts that \u201cthe Court erred in its entire charge to the jury in that he gave more weight, stress and credibility to the evidence of the State than to that of the defendant.\u201d\nThis is a broadside assignment which is ineffectual to bring up any part of the charge for review by this Court. State v. Kirby, supra; Lewis v. Parker, 268 N.C. 436, 150 S.E. 2d 729; State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736. Objections to the statement of contentions must ordinarily be brought to the attention of the court before verdict \u2014 -otherwise they are deemed to have been waived. Doss v. Sewell, 257 N.C. 404, 125 S.E. 2d 899; Peek v. Trust Co., 242 N.C. 1, 86 S.E. 2d 745; 1 Strong\u2019s N. C. Index 2d, Appeal and Error \u00a7 31.\nDefendant next contends the court erred in that the \u201ccharge to the jury was not fair and impartial and was prejudicial to the defendant.\u201d This is designated as Assignment No. 7.\nThis assignment is likewise broadside and ineffectual. \u201cAssignments of error to the charge should quote the portion of the charge to which appellant objects, and assignments based on failure to charge should set out appellant's contention as to what the court should have charged.\u201d State v. Kirby, supra; State v. Wilson, supra; Samuel v. Evans and Cooper v. Evans, 264 N.C. 393, 141 S.E. 2d 627.\nThe requirements of the rules and the reasons for them have been reiterated throughout our Reports. These rules are mandatory and will be enforced. State v. Kirby, supra; Walter Corp. v. Gilliam, 260 N.C. 211, 132 S.E. 2d 313; Pamlico County v. Davis, 249 N.C. 648, 107 S.E. 2d 306; Hunt v. Davis, 248 N.C. 69, 102 S.E. 2d 405; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.\nDefendant does not except to the verdict or to the judgment of life imprisonment based thereon. Even so, the appeal itself is an exception to the judgment and to any other matter of law appearing upon the face of the record. Balint v. Grayson, 256 N.C. 490, 124 S.E. 2d 364; Dilday v. Board of Education, 267 N.C. 438, 148 S.E. 2d 513; Cratch v. Taylor, 256 N.C. 462, 124 S.E. 2d 124. The record, in the sense here used, refers only to the essential parts of the record, such as the pleadings, verdict and judgment. \u201cIt refers only to such constituted matters of the action as must necessarily go upon and constitute the record of it, and which the Court sees and must take notice of, such as the pleadings, the verdict, and the judgment; it does not refer to such matters and things as are of, but incident to the action and do not necessarily go upon the record, such as the rulings of the Court upon questions arising upon motions, evidence, its instructions to the jury, and the like. Such matters as those last mentioned, do not go upon and become part of the record, unless the correctness of the decisions of the court, upon them is questioned, in which case, they are made part of the record, to the end, the complaining party may enter his objections, and the grounds thereof, and assign error. Such decisions of the court are presumed to be correct and acceptable to the parties, in the absence of objections so made.\u201d Thornton v. Brady, 100 N.C. 38, 5 S.E. 910; State v. Stokes, 274 N.C. 409, 163 S.E. 2d 770; Lewis v. Parker, 268 N.C. 436, 150 S.E. 2d 729; In re Will of Adams, 268 N.C. 565, 151 S.E. 2d 59; Lowie and Co. v. Atkins, 245 N.C. 98, 95 S.E. 2d 271.\nWhile defendant does not assign the form of the verdict as error, we call attention to the fact that the jury\u2019s \u201crecommendation of mercy\u201d is not in accord with G.S. 14-17. \u201cThe punishment specified in G.S. 14-17 for first degree murder is either death or imprisonment for life.\u201d State v. Benton, 276 N.C. 641, 174 S.E. 2d 793. Even so, the court treated the verdict as if the jury had recommended that \u201cthe punishment be imprisonment for life in the State\u2019s prison\u201d and imposed a sentence of life imprisonment. Hence the irregularity in the verdict has not prejudiced defendant and the judgment will not be disturbed. State v. Locklear, 253 N.C. 813, 117 S.E. 2d 763; State v. Bailey, 254 N.C. 380, 119 S.E. 2d 165; State v. Foye, 254 N.C. 704, 710, 120 S.E. 2d 169, 173.\nSince prejudicial error has not been shown and error of law does not appear upon the face of the record proper, the verdict and judgment will be upheld.\nNo error.", "type": "majority", "author": "Husiuns, J." } ], "attorneys": [ "\u2022\u2019 C. B. Hodson and Robert L. Satterfield, Attorneys for defendant appellant.", "Robert 'Morgan, Attorney General, and Burley B. Mitchell, Jr., Staff Attorney, for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. AMOS BALDWIN, JR.\nNo. 12\n(Filed 12 June 1970)\n1. Criminal Law \u00a7\u00a7 22, 170\u2014 arraignment \u2014 defendant\u2019s utterance of guilty \u2014 harmless effect\nDefendant was not prejudiced by his remark during the arraignment, \u201cNo, sir, I have to plead guilty, your Honor,\u201d which remark was made in response to the solicitor\u2019s request that the court enter a plea of not guilty for defendant, who was standing mute, where (1) the prospective jurors were not questioned as to whether they had heard defendant\u2019s remark and were biased thereby, (2) defendant did not challenge the array or exhaust his peremptory challenges, and (3) the trial court entered a plea of not guilty for the defendant.\n2. Jury \u00a7 7\u2014 challenge to special venire \u2014 waiver\nObjection to a special venire is waived by failure to challenge the array.\nS. Jury \u00a7 7\u2014 objection to individual jurors \u2014 waiver\nDefendant may not object to the acceptance of individual jurors when he has failed to exhaust his peremptory challenges.\n4. Criminal Law \u00a7 91; Constitutional Law \u00a7 31\u2014 motion for continuance \u2014 additional tests to determine defendant\u2019s pathological intoxication\nMotion by defense counsel for a continuance on the ground that there was- a possibility the defendant was suffering from pathological intoxication at the time he allegedly murdered the deceased and that therefore defendant should be administered a brain wave test following his ingestion of alcohol to determine if he was subject to such intoxication, held properly denied by the trial court in the exercise of its discretion and with no denial of defendant\u2019s constitutional rights, where (1) the motion was made on the opening day of a special term of court ordered for this trial, (2) a special venire of 150 jurors from another county had been summoned on motion of defendant, (3) defense counsel had learned of a psychiatrist\u2019s views on pathological intoxication at least one month prior to trial and could have ascertained at that time if defendant had been given a test following alcohol ingestion, and (4) a test result favorable to defendant would not have given him a valid defense to first degree murder in this State.\n5. Criminal Law \u00a7 91; Constitutional Law \u00a7 31\u2014 motion for continuance \u2014 discretionary and constitutional grounds\nA motion for continuance is ordinarily addressed to the sound discretion of the trial court, whose ruling thereon is not subject to review absent an abuse of discretion; but where the motion is based on a right guaranteed by the Federal and State Constitutions, the motion presents a question of law and the order of the court is reviewable.\n6. Constitutional Law \u00a7 31\u2014 due process \u2014 time to procure evidence \u2014 confrontation\nDue process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony.\n7. Criminal Law \u00a7 6\u2014 legal excuses \u2014 voluntary drunkenness \u2014 crimes of specific intent\nThe general rule that voluntary drunkenness is no legal excuse for crime does not obtain with respect to crimes where, in addition to the overt act, it is required that a definite, specific intent be established as an essential feature.\n8. Homicide \u00a7 4\u2014 first degree murder \u2014 specific intent crime\nMurder in the first degree is a specific intent crime in that a specific intent to kill is a necessary ingredient of premeditation and deliberation.\n9. Homicide \u00a7 8\u2014 defense of intoxication \u2014 first degree murder\nThe fact that, after his intent to kill was deliberately and premedi-tately formed when sober, defendant voluntarily drank enough intoxicants to produce pathological intoxication and then executed his murderous intent, held not to constitute a valid defense to murder in the first degree in this State.\n10. Criminal Law \u00a7 166\u2014 the brief \u2014 abandonment of assignments\nAssignments of error not discussed in defendant\u2019s brief are deemed abandoned. Rules of Practice in the Supreme Court No. 28.\n11. Criminal Law \u00a7 163\u2014 broadside exception to charge\nAn assignment of error based on an exception \u201cto the entire charge of the court\u201d is broadside and is ineffectual to bring- up any part of the charge for review.\n12. Criminal haiv \u00a7 163\u2014 objection to statement of contentions \u2014 waiver\nObjections to the statement of contentions must ordinarily be brought to the attention of the court before verdict; otherwise they are deemed to have been waived.\n13. Criminal law \u00a7 163\u2014 broadside exception to charge\nAn assignment of error that \u201cthe charge to the jury was not fair and impartial and was prejudicial to the defendant,\u201d held broadside and ineffectual.\n14. Criminal law \u00a7 146\u2014 mandatory rules of Supreme Court\nThe rules of the Supreme Court are mandatory and will be enforced.\n15. Criminal law \u00a7 161\u2014 appeal as exception to judgment \u2014 irregularity in verdict \u2014 review\nEven though defendant in a first-degree murder prosecution did not except to the verdict or to the judgment of life imprisonment based thereon, his appeal was an exception to the judgment and to any other matter of law appearing on the face of the record; consequently, the Supreme Court could consider the irregularity in the verdict and determine that defendant had not been prejudiced thereby.\n16. Criminal law \u00a7 135; Homicide \u00a7 31\u2014 punishment of life imprisonment\u2014 irregularity in verdict\nAlthough the jury\u2019s verdict of \u201crecommendation of mercy\u201d in a first-degree murder prosecution was not in accord with G.S. 14-17, the trial court was correct in treating the verdict as if the jury had recommended that .the punishment be imprisonment for life and in imposing a sentence of life imprisonment.\nAppeal by defendant from Beal, S.J., November 1969 Special Session, Obange Superior Court-.\nCriminal prosecution upon a bill of indictment charging that Amos Baldwin, Jr., on 4 June 1969, in Orange County, with force and arms, feloniously, willfully, and of his malice aforethought, did kill and murder Theodore Roosevelt Cole contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.\nThe State\u2019s evidence tends to show that on the morning of 4 June 1969 defendant went to the home of Dorothy Burnett (Dorothy) in Carrboro where Ralph William Baldwin (Ralph) was then living. Defendant and Ralph talked for about two hours. They went to the \u201c7-Eleven\u201d and bought a quart of. beer. Returning to- Dorothy\u2019s house, they drank beer and played records. During this time defendant told Ralph he had seen a policeman' named Paul Minor that morning and, thinking he was Policeman Ted Cole, started to shoot him. Defendant had been saying all week that he was going to kill someone. \u201cAmos stated that we were going to read his name in the newspaper.\u201d He said he was going to kill. Ted Cole because he had given him a speeding ticket. Defendant was sober at that time.\nDefendant then took Ralph to the Chapel Hill police station to appear in court, but the case against Ralph was continued. Defendant drove to Marley\u2019s Barber Shop on Franklin Street in Chapel Hill where Ralph borrowed $5.00. They were riding in defendant\u2019s, blue Ford Falcon in which defendant had a fold-up shotgun and a pistol. They rode around drinking -beer most of the day. Defendant was driving all right and did not seem to be drunk.\nLater in the day they bought gas and defendant inquired at the gas station where Policeman Minor- lived. He didn\u2019t ask where Ted Cole lived but \u201cAmos knew Ted Cole lived right beside Paul Minor.\u201d Leaving the service station, defendant drove down a dirt road and asked a little boy where Ted Cole lived. He then drove to Cole\u2019s house and stopped the car. Cole was standing in his yard. Defendant asked Cole \u201cwhy he told lies on him \u2014 them damn lies on him.\u201d Defendant then jumped out of his car \u201cwith his shotgun in his hand and Cole was standing up in the yard. Amos shot him \u2014 shot him right quick. After Amos shot him, he fell and then Amos shot him again after he fell to the ground.\u201d Defendant then got in his car, \"took off fast\u201d and drove to his home. On arrival there, Ralph jumped out of the car, caught a ride to the police station and reported that defendant had shot a policeman. Shortly thereafter, defendant was arrested and charged with first degree murder..\nDefendant, testifying in his own behalf, stated that he had been drinking continuously for about a week an.d had \u201cno recollection of anything that transpired on Tuesday, June 3, or .Wednesday, June 4, 1969, and I have no recollection of Ted Cole\u2019s death.\u201d His wife testified that he was under the influence of liquor on June 4 and \u201cdid not seem right.\u201d\nThe case was submitted to the jury and it returned a verdict of \u201cguilty of first degree with mercy.\u201d The court then asked, \u201cYou have reached a verdict of murder in the first degree with recommendation of mercy?\u201d The foreman replied, \u201cYes sir.\u201d The jury was polled at defendant\u2019s request and each juror stated that his verdict was \u201cguilty of murder in the first degree with recommendation of mercy.\u201d The court thereupon pronounced a sentence of life imprisonment. Defendant gave'notice of 'appeal to the Supreme Court assigning errors as noted in the opinion.\n\u2022\u2019 C. B. Hodson and Robert L. Satterfield, Attorneys for defendant appellant.\nRobert 'Morgan, Attorney General, and Burley B. Mitchell, Jr., Staff Attorney, for the State." }, "file_name": "0690-01", "first_page_order": 716, "last_page_order": 728 }