{ "id": 8562661, "name": "STATE OF NORTH CAROLINA v. LEWIS BURLEY FOUNTAIN", "name_abbreviation": "State v. Lewis Burley Fountain", "decision_date": "1972-10-11", "docket_number": "No. 13", "first_page": "58", "last_page": "71", "citations": [ { "type": "official", "cite": "282 N.C. 58" } ], "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": "24 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632065 ], "opinion_index": 0, "case_paths": [ "/nc/222/0672-01" ] }, { "cite": "44 S.E. 2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627106, 8627083 ], "opinion_index": 0, "case_paths": [ "/nc/227/0650-02", "/nc/227/0650-01" ] }, { "cite": "174 S.E. 2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563250 ], "opinion_index": 0, "case_paths": [ "/nc/276/0674-01" ] }, { "cite": "111 S.E. 869", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N.C. 795", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659280 ], "opinion_index": 0, "case_paths": [ "/nc/183/0795-01" ] }, { "cite": "170 S.E. 2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559725 ], "opinion_index": 0, "case_paths": [ "/nc/275/0615-01" ] }, { "cite": "166 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558305 ], "opinion_index": 0, "case_paths": [ "/nc/275/0198-01" ] }, { "cite": "178 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565528 ], "opinion_index": 0, "case_paths": [ "/nc/277/0391-01" ] }, { "cite": "181 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565707 ], "opinion_index": 0, "case_paths": [ "/nc/279/0073-01" ] }, { "cite": "152 S.E. 2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561811 ], "opinion_index": 0, "case_paths": [ "/nc/269/0057-01" ] }, { "cite": "174 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563091 ], "opinion_index": 0, "case_paths": [ "/nc/276/0598-01" ] }, { "cite": "170 S.E. 2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559842 ], "opinion_index": 0, "case_paths": [ "/nc/275/0670-01" ] }, { "cite": "30 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601357 ], "opinion_index": 0, "case_paths": [ "/nc/224/0329-01" ] }, { "cite": "158 S.E. 2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572647 ], "opinion_index": 0, "case_paths": [ "/nc/272/0271-01" ] }, { "cite": "187 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573124 ], "opinion_index": 0, "case_paths": [ "/nc/280/0633-01" ] }, { "cite": "177 S.E. 333", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "opinion_index": 0 }, { "cite": "207 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626576 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/207/0460-01" ] }, { "cite": "138 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570150 ], "opinion_index": 0, "case_paths": [ "/nc/262/0599-01" ] }, { "cite": "111 S.E. 2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625162 ], "opinion_index": 0, "case_paths": [ "/nc/251/0309-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "175 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561677 ], "opinion_index": 0, "case_paths": [ "/nc/277/0001-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] }, { "cite": "181 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565770 ], "opinion_index": 0, "case_paths": [ "/nc/279/0085-01" ] }, { "cite": "197 N.E. 339", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "49 Ohio App. 359", "category": "reporters:state", "reporter": "Ohio App.", "case_ids": [ 1572854, 1344719 ], "opinion_index": 0, "case_paths": [ "/ohio-app/49/0359-01" ] }, { "cite": "170 La. 630", "category": "reporters:state", "reporter": "La.", "case_ids": [ 2919681 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/la/170/0630-01" ] }, { "cite": "111 P. 703", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "49 Colo. 147", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 2599685 ], "opinion_index": 0, "case_paths": [ "/colo/49/0147-01" ] }, { "cite": "153 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565216 ], "opinion_index": 0, "case_paths": [ "/nc/269/0617-01" ] }, { "cite": "142 S.E. 2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574692 ], "opinion_index": 0, "case_paths": [ "/nc/264/0602-01" ] }, { "cite": "166 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558370 ], "opinion_index": 0, "case_paths": [ "/nc/275/0250-01" ] } ], "analysis": { "cardinality": 1104, "char_count": 26299, "ocr_confidence": 0.54, "pagerank": { "raw": 2.170828329301275e-07, "percentile": 0.7710204340098593 }, "sha256": "113b41afa65c13ea201e8ff5f090fdadbd25e3bc422e184c973ae919af23202d", "simhash": "1:2749fa22166c5472", "word_count": 4541 }, "last_updated": "2023-07-14T21:08:27.476898+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. LEWIS BURLEY FOUNTAIN" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendant assigns as error the failure of the trial court to grant his motion for mistrial.\nIn selecting the jury the original venire was exhausted, and Judge Long ordered that ten additional jurors be selected from the jury list in the same manner as provided for the selection of regular jurors. Defendant objected to the drawing of the additional jurors and on the next day moved for a mistrial on the ground that the tales jurors were not called as members of the original venire prior to the seating of any jurors. Defendant relies on the provisions of G.S. 9-21, which provides:\nPeremptory challenges in criminal cases.\u2014 (a) In all capital cases each defendant may challenge peremptorily without cause 14 jurors and no more. In all other criminal cases each defendant may challenge peremptorily six jurors without cause and no more. To enable defendants to exercise this right, the clerk shall read over the names of the jurors on the panel, in the presence and hearing of the defendants and their counsel, before the jury is impaneled. (Emphasis ours.)\n(b) In all capital cases the State may challenge peremptorily without cause six jurors for each defendant and no more. In all other criminal cases the State may challenge peremptorily without cause four jurors for each defendant and no more. The State\u2019s challenge, peremptory or for cause, must be made before the juror is tendered to the defendant. The State does not have the right to stand any jurors at the foot of the panel.\nG.S. 9-11 provides:\nSupplemental jurors; special venire.\u2014 (a) If necessary, the court may, without using the jury list, order the sheriff to summon from day to day additional jurors to supplement the original venire. Jurors so summoned shall have the same qualifications and be subject to the same challenges as jurors selected for the regular jury list. If the presiding judge finds that service of summons by the sheriff is not suitable because of his direct or indirect interest in the action to be tried, the judge may appoint some suitable person in place of the sheriff to summon supplemental jurors. The clerk of superior court shall furnish the register of deeds the names of those additional jurors who are so summoned and who report for jury service.\n(b) The presiding judge may, in his discretion, at any time before or during a session direct that supplemental jurors or a special venire be selected from the jury list in the same manner as is provided for the selection of regular jurors. Jurors summoned under this subsection may be discharged by the court at any time during the session and are subject to the same challenges as regular jurors, and to no other challenges.\nThe language of G.S. 9-11 is clear and unambiguous, and its provisions authorize the trial judge to order the summonsing of supplemental jurors in order to insure orderly, uninterrupted, and speedy trials.\nThis Court is without power to interpolate or superimpose provisions not contained in a clear and unambiguous statute. Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 166 S.E. 2d 663; N. C. Board of Architecture v. Lee, 264 N.C. 602, 142 S.E. 2d 643.\nIn construing statutes dealing with similar subject matter, the statutes must be construed in pari materia and harmonized so as to give effect to each other. Utilities Comm. v. Electric Membership Corp., supra; Gravel Co. v. Taylor, 269 N.C. 617, 153 S.E. 2d 19.\nThe procedure of impaneling a jury is not statutory but is an ancient rite still in general use in the courts of this State. It is the final procedure or ceremony in the formation of a jury.\nThe provisions of G.S. 9-11 and G.S. 9-21 are easily harmonized. The requirement in G.S. 9-21 that the clerk read the names of the jurors to enable defendants to exercise their rights of challenge before the jury is impaneled applies to original venires and additional venires with equal force, and relates to the time before the jury is finally formed. Clearly the purpose of this provision is to keep the defendant and his counsel informed as to the composition of the jury venires until the time the jury is impaneled.\nWe have been unable to find any authority in this jurisdiction as to the precise issue here presented. We do find authority from other jurisdictions supporting the general rule that an accused is not prejudiced because he is not furnished a list of persons called as supplemental jurors where it became necessary to summons them after the court had properly excluded jurors from the original venire. 47 Am. Jur. 2d, Jury \u00a7 162; Demato v. People, 49 Colo. 147, 111 P. 703; State v. McKee, 170 La. 630, 128 So. 658; Makley v. State, 49 Ohio App. 359, 197 N.E. 339.\nInstant record shows that defendant failed to move for a continuance in order to review the names of the additional jurors drawn upon order of the trial judge. The record does not reveal that the clerk failed to read over the names of the additional jurors in the presence and hearing of defendant and his counsel before the jury was impaneled. Further, defendant has failed to show any prejudice since the record does not reveal the acceptance of any juror after the exhaustion of his peremptory challenges. To follow defendant\u2019s contention would result in a procedure which would impede the orderly dispatch of court business and defeat the primary purpose of our court system: to afford defendants fair and speedy trials.\nWe find no merit in this assignment of error.\nDefendant next assigns as error the action of the trial judge in sustaining the State\u2019s objection to cross-examination of Florence Parker and Deputy Sheriff Setliff concerning a shotgun and shotgun shell casing purportedly found at the scene of Vera Parker\u2019s death.\nOn cross-examination of the witness Florence Parker, the following occurred:\nQ. Now you say that you don\u2019t know anything about a shotgun?\nA. No, sir, but they said one was out there.\nQ. Who is they?\nSolicitor Scott: Objection to what somebody said, if she does not know about it.\nCourt: Sustained.\nException No. 2.\nThe same type question was put to Deputy Sheriff Setliff concerning the shell casing. He had previously answered that he had no personal knowledge of the existence of a shell casing at the scene, but that someone had told him one was there.\nDefendant in both instances attempted to establish the existence of the shotgun or shell casing through witnesses who stated they had no personal knowledge concerning the matter. Had the court allowed defendant to elicit this testimony as to what someone other than the witnesses personally knew about the shotgun or the shell casing, it would clearly have been hearsay evidence. 2 Strong\u2019s N.C. Index 2d, Criminal Law \u00a7 73, p. 572; Stansbury, N.C. Evidence 2d, Hearsay \u00a7 138, pp. 335-339.\nIn any event, the record on appeal does not show what the responses to these questions would have been.\nIt is well recognized that when a record fails to show what the witness would have testified had he been permitted to answer questions objected to, the exclusion of such testimony is not shown to be prejudicial. This rule applies to questions asked on direct and cross-examination. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E. 2d 405; State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416.\nThis assignment of error does not set out the excluded evidence but merely refers to the record page where the asserted error may be discovered. This is not sufficient. State v. Fox, 277 N.C. 1, 175 S.E. 2d 561; Rule 19(3), Rules of Practice in the Supreme Court of North Carolina.\nThis assignment of error is overruled.\nBy his Fifth Assignment of Error defendant asserts that the trial court erred in allowing the solicitor to further cross-examine defendant concerning an alleged prior conviction after defendant denied having been convicted of the crime. We quote portions of the record pertinent to this contention:\nQ. State to the court and the jury whether or not you were indicted and convicted for shooting into the home down there?\nA. They say that I shot into it but I didn\u2019t.\nQ. Were you convicted of that?\nA. Er, no.\nQ. Were you convicted or did you plead guilty?\nA. I was not convicted of it.\nQ. Did you plead guilty?\nA. I don\u2019t remember.\nQ. That was in Caswell County that I am talking about and you don\u2019t remember whether you were \u2014\nAttorney Wrenn: Objection, the solicitor is bound by the answer of the defendant, your Honor.\nCourt : Overruled.\nException No. 7.\nI did not plead guilty of shooting into no house. The court made some sort of settlement or something. I do not know what kind of a settlement it was. It did not involve me. I don\u2019t know if I pleaded guilty in May, 1971 or shooting into the house of Vera Parker. I do not remember who the judge was. I was on probation at the time I killed Vera Parker. I was not at Vera Parker\u2019s home. One of the conditions of my probation was that I was not to go to Vera Parker\u2019s home or molest her.\nQ. And I will ask you now even if you went not convicted, I will ask you if you did not actually shoot into the home of Vera Parker on the 20th day of February, 1971?\nA. I did not.\nAttorney Wrenn: Objection.\nCourt: Overruled.\nException No. 8.\nQ. You pled guilty?\nA. No, I did not plead guilty to shooting in no house.\nQ. Can you read? You can write, can\u2019t you, look at that did you sign that?\nA. I might have signed that but I have signed a lot of forms here that I don\u2019t really understand.\nQ. Did you sign that?\nA. That is my signature on that.\nQ. Don\u2019t you know that is a transcript of a plea of guilty to the felony of discharging a firearm in an occupied dwelling wasn\u2019t it?\nA. I signed a stack of forms here but I never read a line, they said signed it here.\nQ. Didn\u2019t the judge read it over to you and ask you if you agreed to it or not?\nA. I don\u2019t know.\nQ. And you answered, \u201cYes, sir,\u201d didn\u2019t you?\nA. I signed some forms here and they were not read or nothing.\nAttorney Wrenn: I object, he is asking the man what he was tried and convicted of for one purpose and I asked the Court to instruct the jury about that, but I renew my objection to this line of questioning.\nSolicitor Scott: The State is trying to do several things among others, to show motive.\nCourt: Overruled.\nException No. 9.\nWhen a defendant in a criminal action elects to take the stand and testify, he is subject to impeachment as other witnesses, including impeachment by cross-examination concerning prior criminal convictions: State v. Williams, 279 N.C. 663, 185 S.E. 2d 174; State v. Sheffield, 251 N.C. 309, 111 S.E. 2d 195. However, cross-examination as to prior convictions must be made in good faith and be based on information. State v. Heard, 262 N.C. 599, 138 S.E. 2d 243; State v. Sheffield, supra.\n\u201cIt is a general rule of evidence in North Carolina \u2018that answers made by a witness to collateral questions on cross-examination are conclusive, and that the party who draws out such answers will not be permitted to contradict them; which rule is subject to two exceptions, first, where the question put to the witness on cross-examination tends to connect him directly with the cause or the parties, and second, where the cross-examination is as to a matter tending to show motive, temper, disposition, conduct, or interest of the witness toward the cause or parties.\u2019 State v. Jordan, 207 N.C. 460, 177 S.E. 333 (1934).\u201d State v. Long, 280 N.C. 633, 187 S.E. 2d 47.\nHowever, this does not preclude the solicitor from pressing or \u201csifting the witness\u201d by further cross-examination. State v. Robinson, 272 N.C. 271, 158 S.E. 2d 23; State v. King, 224 N.C. 329, 30 S.E. 2d 230. The extent of cross-examination rests largely in the discretion of the trial judge. State v. Bumper, 275 N.C. 670, 170 S.E. 2d 457; 7 Strong\u2019s N.C. Index 2d, Witnesses \u00a7 8, p. 703.\nThe record shows that the solicitor acted in good faith and had information concerning the crime to which his examination was directed. There was no abuse of discretion on the part of the trial judge in allowing the solicitor to \u201csift the witness\u201d in light of the evasive and equivocal answers given by the witness.\nWe note that, in most instances, the answers were given long before objection was interposed, and the objection was thereby waived. State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487.\nAlthough we do not commend the use by the solicitor of defendant\u2019s signature on the purported transcript of the guilty plea during his cross-examination of defendant, we are unable to find anything in this assignment of error so material and prejudicial that a different result would likely have been reached had the solicitor not pursued this line of questioning. State v. Temple, 269 N.C. 57, 152 S.E. 2d 206.\nThis assignment of error is overruled.\nDefendant assigns as error the denial of his motion for judgment as of nonsuit at the close of the State\u2019s evidence and at the close of all the evidence.\nDefendant argues that the trial judge should have allowed his motion as to first degree murder since there was not sufficient evidence of premeditation or deliberation.\nFirst degree murder is the unlawful killing of a human being with malice and premeditation and deliberation. State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393; State v. Reams, 277 N.C. 391, 178 S.E. 2d 65; State v. Moore, 275 N.C. 198, 166 S.E. 2d 652. Thus, the question presented by this assignment of error is whether the State has presented such substantial evidence as would permit a jury to find that defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished his purpose. State v. Reams, supra; State v. Walters, 275 N.C. 615, 170 S.E. 2d 484; State v. Robbins, supra.\nPremeditation means \u201cthought beforehand for some length of time, however short.\u201d State v. Reams, supra; State v. Benson, 183 N.C. 795, 111 S.E. 869.\n\u201cDeliberation means that the act is done in a cool state of blood. It does not mean brooding over it or reflecting upon it for a week, a day, or an hour, or any appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation.\u201d State v. Reams, supra; State v. Benson, supra.\nThe elements of premeditation and deliberation are not ordinarily susceptible to direct proof, but are inferred from various circumstances, such as ill will, previous difficulty between the parties, or evidence that the killing was done in a vicious and brutal manner. State v. Duboise, supra; State v. Reams, supra; State v. Hamby, 276 N.C. 674, 174 S.E. 2d 385; State v. Stanley, 227 N.C. 650, 44 S.E. 2d 196; State v. Watson, 222 N.C. 672, 24 S.E. 2d 540.\nThis record is replete with evidence of previous difficulties between defendant and Vera Parker. It also clearly shows the existence of ill will between them. Defendant, who was 32 years old, weighed 216 pounds, and stood six feet two inches in height, savagely and brutally inflicted seventeen separate knife wounds upon the 45-year-old Vera Parker. By his own statement \u201che cut her until the blade came out of his knife.\u201d\nThere was sufficient substantial evidence to permit a jury to find that after premeditation and deliberation defendant formed a fixed purpose to kill Vera Parker. The trial judge correctly overruled defendant\u2019s motion for nonsuit.\nOur examination of the entire record reveals nothing which would justify disturbing the verdict and judgment in this case.\nNo error.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General Hafer for the State.", "Benjamin R. Wrenn, Court-Appointed Attorney, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEWIS BURLEY FOUNTAIN\nNo. 13\n(Filed 11 October 1972)\n1. Jury \u00a7 2\u2014 exhaustion of original venire \u2014 additional jurors selected \u2014 no error\nDefendant in a first-degree murder prosecution was not prejudiced by the selection of ten additional jurors from the jury list after the original venire was exhausted where defendant failed to move for a continuance in order to review the names of the additional jurors, where the record does not show that the clerk failed to read over the names of the additional jurors in the presence and hearing of defendant and his counsel before the jury was impaneled, and where the record did not reveal the acceptance of any juror after the exhaustion of defendant\u2019s peremptory challenges. G.S. 9-21; G.S. 9-11.\n2. Criminal Law \u00a7 73\u2014 testimony outside personal knowledge of witness \u2014 hearsay testimony properly excluded\nThe defendant\u2019s attempt to establish the existence of a shotgun or shell casing through witnesses who stated they had no personal knowledge concerning the matter was properly excluded by the trial court in a murder prosecution, as such testimony would have been hearsay evidence.\n3. Criminal Law \u00a7 162\u2014 appeal \u2014 evidentiary questions \u2014 assignment or error \u2014 requirements\nWhen a record fails to show what the witness would have testified had he been permitted to answer questions objected to, the exclusion of such testimony is not shown to be prejudicial; an assignment of error which does not set out the excluded evidence but merely refers to the record page where the asserted error may be discovered is not sufficient.\n4. Criminal Law \u00a7 88\u2014 cross-examination \u2014 denial of prior convictions \u2014 \u201csifting the witness\u201d proper\nThe trial court did not err in permitting a solicitor to further cross-examine defendant witness concerning an alleged prior conviction after defendant denied having been convicted of the crime where the solicitor acted in good faith and with information concerning the crime and where the solicitor\u2019s questions amounted to a \u201csifting of the witness\u201d in light of evasive and equivocal answers given by the witness.\n5. Homicide \u00a7 21\u2014 first-degree murder \u2014 sufficiency of State\u2019s evidence to withstand nonsuit\nDefendant\u2019s motion for nonsuit in a first degree murder prosecution, made at the close of all the evidence, was properly denied where the evidence was sufficient to permit a jury finding of premeditation and deliberation in that it tended to show that the defendant and deceased had had previous difficulties, that ill will existed between the two and that the younger male defendant inflicted seventeen separate knife wounds upon the older female victim.\nAppeal by defendant from Long, J., 17 January 1972 Criminal Session of Rockingham Superior Court.\nDefendant was tried upon a bill of indictment charging him with the murder of Vera Parker. He entered a plea of not guilty.\nThe State offered evidence which, in substance, is as follows:\nCurtis Parker testified that on 28 August 1971 he had been harvesting tobacco, and that late in the afternoon he went to his house and sent his wife and daughter to light the fire at the tobacco barn. Later, as a result of a conversation with his daughter, Dorothy, he went out and found his wife\u2019s body lying three or four feet from the edge of the road. She was dead. He had earlier seen defendant, Lewis Burley Fountain, his daughter Dorothy, and some of their children standing across the road near the place where he found his wife\u2019s body. Dorothy was married to defendant; they had been separated for about four years, and their eight children lived at the Parker residence. Curtis Parker thereafter testified that he kept a shotgun and rifle locked up in a wardrobe, and after he heard what had happened he unlocked the wardrobe and obtained the shogun.\nDr. Paul Mabe, a practicing physician and Assistant Medical Examiner for Rockingham County, testified that he examined the body of Vera Parker in the Annie Penn Memorial Hospital at Reidsville on the night of 28 August 1971. In his opinion her death resulted from shock due to loss of blood caused by some seventeen lacerations or stab wounds. He described the wounds as follows:\n\u201cOne laceration was noted over the posterior of the scalp, the base of the skull area, which was approximately some two inches in length; there were two facial lacerations, over the left side of the face, approximately four or five inches in length the longer one, two six inch deep lacerations over the left posterior shoulder, over the upper back area off on the left, they were quite deep extending through not only the skin and through the muscle but not into the chest cavity, two small lacerations over the left shoulder, one ten inch laceration over the left chest wall extending around the left lateral side of the chest wall, two eight inch deep lacerations over the right anterior chest area over the right front part of the chest, one penetrating in the chest cavity on the right.\n\u201cThere were five small lacerations over the anterior chest, two, three to four inch lacerations over the upper abdomen, one penetrating into the right abdomen cavity and two lacerations of the left forearm and hand. ...\u201d\nIn his opinion deceased could not have lived over four or five minutes after receiving the injuries.\nFlorence Parker stated that at the request of her father, Curtis Parker, she and her mother went to light the fire at the tobacco barn. On the way to the barn she saw defendant, his wife Dorothy, and their sons Richard and Burley, Jr., across the road near a patch of pine trees. Defendant had a knife on Dorothy's throat and at that time her mother, Vera Parker, went toward Burley, telling him \u201cnot to do that, that he was not supposed to be there, and that she did not want any trouble.\u201d Defendant pushed his wife aside, went toward Vera Parker and cut and stabbed her. She (Florence) pulled on Burley until she fell down. Dorothy ran toward the house, and after Vera Parker fell to the ground, Burley left.\nFlorence said on cross-examination that defendant did not go to Vera Parker, but that Vera Parker was going toward Burley. She did not see a shotgun at the scene. She stated that defendant and her mother had previously had trouble and that defendant had shot into their house four times. On another occasion her mother had shot Burley.\nDeputy Sheriff Duke Setliff testified that he arrived at the scene of the killing at 9:00 p.m. He described the condition of the deceased\u2019s body and stated that when the body was removed a bloody knife blade was found where the body had been. The blade was a little over four inches long.\nBurley Fountain, Jr., aged eight, testified that defendant cut Vera Parker, and at that time Vera was not doing anything to defendant, but that Florence Parker was hitting defendant on the back during the time he was cutting Vera. On cross-examination he stated that he was playing ball in the house and later returned to the place of the cutting with his mother.\nDeputy Sheriff Setliff was recalled, and further cross-examination of him revealed that on the night of 28 August 1971, at about 10:15 p.m., after he had warned defendant Burley Fountain of his constitutional rights, defendant made a statement. In essence, the statement was that defendant was visiting with his wife and children across the road from the Parker house when Yera Parker came out of the house \u201cfussing and arguing.\u201d She threatened that if he came to the house she would kill him. Vera later came out of the house, fired a shotgun, and threw it to the ground. Florence picked up the gun and started to beat him on the head with it while Yera held him. After stabbing Vera until she fell to the ground, he left.\nDeputy Sheriff Edward Page, testifying for defendant, stated that Burley Fountain arrived at his (Page\u2019s) home at about 9:80 p.m. on 28 August, 1971. He told the officer about the cutting and voluntarily placed himself in custody. Deputy Sheriff Page later returned to the scene searching for a knife blade, because Burley Fountain had told him \u201che cut her until the blade came out of the knife.\u201d He found a 12-gauge shotgun shell lying on the ground about four feet from the blood.\nGlynton Strader testified that on 28 August 1971 Burley Fountain had worked with him in the tobacco field, and that he had put defendant off near the Parker home in later afternoon. Strader returned to the scene of the killing a short time thereafter and found Curtis Parker and Eugene Troxler in possession of firearms. The guns, an empty single shot 12-gauge shotgun and a loaded .22 rifle, were given to him.\nDr. Evans Charles Fowler, a psychiatrist employed at Cherry Hospital in Goldsboro, in pertinent part testified:\n\"... I made these determinations. The diagnosis was: Primary: Schizophrenia, Residual type, Non-Psychotic. Secondary: Mental retardation, Mild to borderline. Another doctor and myself saw Fountain and the disposition was signed by both of us. It reads: \u2018It is our opinion that this subject, Lewis B. Fountain, is able to differentiate between right and wrong and further that he can understand the probable consequences of his acts and is able to plead to the indictment pending against him. It is further our opinion that he is able to consult with counsel in the preparation of his own defense.\u2019 \u201d\nDefendant testified that he was married to Vera Parker\u2019s daughter, Dorothy, and that they had eight children. He stated that on 28 August 1971 Mr. Strader let him off at the Parker mailbox, and his children and wife walked across the road where he usually met them. He saw Vera Parker near the house and heard her say, \u201cIf that s.o.b. don\u2019t leave from here I am going to kill him.\u201d He paid no attention to what Vera Parker said. Later, he looked up and saw Vera Parker pointing a shotgun at him. At this time he grabbed his wife and backed up. He had a knife out. Vera Parker fired the shotgun and grabbed him. Florence then began beating on his back with the shotgun, and during \u201cthe shuffle\u201d he cut Vera Parker several times.\nOn cross-examination defendant testified that he weighed 216 pounds and was six feet two inches tall. He admitted having been convicted of assaulting his wife on numerous occasions and having been convicted of various misdemeanors. He was on probation when he killed Vera Parker.\nThe jury returned a verdict of guilty of first degree murder with a recommendation for life imprisonment. Defendant appealed from judgment imposing the mandatory life sentence.\nAttorney General Morgan and Assistant Attorney General Hafer for the State.\nBenjamin R. Wrenn, Court-Appointed Attorney, for defendant." }, "file_name": "0058-01", "first_page_order": 78, "last_page_order": 91 }