{ "id": 8564720, "name": "STATE OF NORTH CAROLINA v. JOE LEWIS WHITE", "name_abbreviation": "State v. White", "decision_date": "1975-06-26", "docket_number": "No. 24", "first_page": "44", "last_page": "53", "citations": [ { "type": "official", "cite": "288 N.C. 44" } ], "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": "161 S.E. 2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "274 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559426 ], "year": 1968, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0084-01" ] }, { "cite": "185 S.E. 2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569736 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0042-01" ] }, { "cite": "187 S.E. 2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573933 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0118-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "90 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698762 ], "year": 1884, "opinion_index": 0, "case_paths": [ "/nc/90/0719-01" ] }, { "cite": "208 S.E. 2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569953 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0751-01" ] }, { "cite": "90 S.E. 2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625515 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0429-01" ] }, { "cite": "119 S.E. 2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1961, "pin_cites": [ { "page": "171" }, { "page": "170" }, { "page": "171" }, { "page": "171" } ], "opinion_index": 0 }, { "cite": "254 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626399 ], "weight": 3, "year": 1961, "pin_cites": [ { "page": "387" }, { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0380-01" ] }, { "cite": "204 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563971 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0274-01" ] } ], "analysis": { "cardinality": 835, "char_count": 21453, "ocr_confidence": 0.551, "pagerank": { "raw": 4.7083546001864107e-07, "percentile": 0.9288921863784336 }, "sha256": "28d0c86e81890c0e68745fc1b96e7ce0dc8b912cd72775d08cf6fd27a1213b4a", "simhash": "1:fffbf552f9b64879", "word_count": 3609 }, "last_updated": "2023-07-14T18:59:08.487022+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOE LEWIS WHITE" ], "opinions": [ { "text": "EXUM, Justice.\nDefendant must be given a new trial on both indictments because of prejudicial error committed in the trial judge\u2019s instructions to the jury.\nThe principal State\u2019s witness was Delores Austin. Her testimony was essentially this: She was defendant\u2019s girl friend. Defendant asked her after Bunny White\u2019s preliminary hearing to help him kill Watson. She overheard defendant discuss killing Watson \u201cdozens of times,\u201d many times with other members of defendant\u2019s family. On the night of May 19, 1973, defendant sent her twice to Watson\u2019s home to determine whether Watson was there. After her second trip she reported to defendant that Watson was at home. He asked her to help him saying that it \u201cwas something he must do and that he couldn\u2019t let that old man testify against his brother.\u201d After defendant siphoned two cans' of gasoline out of his father\u2019s truck he carried one can and Delores Austin carried the other to the vicinity of Watson\u2019s home. Delores Austin then testified:\n\u201cJoe left me about two houses from Mose\u2019s house because I couldn\u2019t run, but I could see Joe Lewis go up to Mose\u2019s house and pour gas on it around the back steps. I saw Joe Lewis get up on a stone and look in the window. All of a sudden I saw an explosion of fire. Joe Lewis was running towards me and when he reached me he said, T got him.\u2019 \u201d\nShe further testified that on the following Monday she and defendant went to McColl, South Carolina, then to Sanford, North Carolina, and finally to Tabor City where they lived for a year and a half. After they \u201cfound out the law was behind\u201d them they were taken by defendant\u2019s father to some woods near Laurinburg where they were picked up by defendant\u2019s brothers and mother who took Delores Austin to the bus station in Fay-etteville. She took a bus to New Haven, Connecticut, where she surrendered to law enforcement officials. Although there is testimony in the record by Detective L. E. Smith of the Laurin-burg Police Department that Delores Austin had at one time been charged with the murder of Mose Watson she admitted having pled guilty only to accessory after the fact to murder.\nAfter the State and defendant had rested their cases and before argument to the jury, defendant requested in writing the following jury instruction:\n\u201cThe witness, Delores Austin, has previously entered a plea of guilty to the crime of accessory after the fact of murder in the first degree. Therefore, Delores Austin, is considered by the law to have an interest in the outcome of this case. Consequently, Ladies and Gentlemen of the Jury, I instruct you to examine every part of her testimony with the greatest care and caution. If, after doing so, you believe her testimony in whole or in part, you should treat what you believe the same as any other believable evidence.\u201d\nThe trial judge\u2019s only instruction bearing upon the testimony of an interested witness was:\n\u201cThe defendant in this case testified in his own behalf. In this connection, I do instruct you that the defendant has an interest in the outcome of this case and that you should, therefore, carefully scrutinize his testimony in the light of such interest; and you may also find that any other witness has an interest in the outcome of this case; and in deciding whether to believe such a witness, you may take his interest into account. If, after doing so, you believe the testimony of the defendant, or the testimony of any other interested witness in whole or in part, then you should treat what you believe the same as any other believable evidence.\u201d\nThis instruction fell far short of complying with defendant\u2019s request. Failure to instruct the jury in substance that Delores Austin was an accomplice, therefore an interested witness, and that her testimony should be carefully scrutinized was, in view of defendant\u2019s request, and the facts supporting it, prejudicial error. State v. Spicer, 285 N.C. 274, 204 S.E. 2d 641 (1974) ; State v. Bailey, 254 N.C. 380, 119 S.E. 2d 165 (1961) ; State v. Hooker, 243 N.C. 429, 90 S.E. 2d 690 (1956).\nDefendant\u2019s request was, it is true, in part erroneous. The fact that Delores Austin had previously pled guilty to accessory after the fact to murder of Mose Watson would not, ipso facto, make her an accomplice of defendant. \u201cThe more generally accepted view is that an accessory after the fact is not an accomplice.\u201d State v. Bailey, supra, 254 N.C. at 387, 119 S.E. 2d at 171. The trial judge was not, however, relieved of his duty to give a correct accomplice testimony instruction, there being evidence to support it, merely because defendant\u2019s request was not altogether correct. State v. Bailey, supra. In Bailey the requested instruction on accomplice testimony was legally insufficient in two respects. First, the request called for a charge that as a matter of law certain witnesses were accomplices when there was evidence from which the jury could find that they were not. Second, the request gave the defendant, in substance, a more favorable instruction than he was entitled to as a matter of law. We held, nevertheless, that the trial judge, \u201cwhile not required to parrot the instructions \u2018or to become a mere judicial phonograph for recording the exact and identical words of counsel,\u2019 must charge the jury in substantial conformity to the prayer;\u201d and we set out what would have been proper instructions. Id. at 386, 119 S.E. 2d at 170; accord, State v. Hooker, supra.\n\u201c [A]n \u2018accomplice\u2019 is a person who knowingly, voluntarily, and with common intent with the principal offender unites with him in the commission of the crime charged, either as a principal, as an aider and abettor, or as an accessory before the fact. The generally accepted test as to whether a witness is an \u2018accomplice\u2019 is whether he himself could have been convicted for the offense charged, either as a principal, or as an aider and abettor, or as an accessory before the fact, and if so, such a witness is an accomplice within the rules relating to accomplice testimony.\u201d State v. Bailey, supra, 254 N.C. at 387, 119 S.E. 2d at 171. It is not necessary for a witness to be charged with the same crime or crimes as the defendant in order to be an accomplice. State v. Spicer, supra.\nThe testimony of Delores Austin herself, uncontradicted except by defendant, was enough to convict her of the same crimes charged against defendant on the theory that she at least aided and abetted him in the commission of those crimes.\nOn this evidence defendant\u2019s request for an accomplice instruction with regard to the testimony of Delores Austin was, except for the first sentence, a good statement of the law. The trial court should have in substance so charged the jury. There are compelling reasons, demonstrated in legal history and policy, for instructing juries to scrutinize the testimony of accomplices. See State v. Bailey, supra, for a good discussion of them. \u201cA skeptical approach to accomplice testimony is a mark of the fair administration of justice.\u201d Id. at 388, 119 S.E. 2d at 171.\nThere is another aspect to the trial judge\u2019s instructions to the jury which deserves noting. He charged that the State must prove beyond a reasonable doubt \u201cthat the defendant, in burning the house, acted maliciously. Now, that is, intentionally, wil-fully, or wantonly, without lawful excuse or justification or with a fraudulent purpose.\u201d (Emphasis supplied.) Thereafter he charged that the \u201cState must prove that it was done maliciously or with a fraudulent purpose. I instruct you that the burning of a dwelling by the defendant . . . for the purpose of putting Mose Watson in fear or terror to prevent him from testifying . . . would constitute a fraudulent purpose on his part.\u201d (Emphasis supplied.) In his final mandate to the jury in the arson case the trial judge charged that the State must prove, among other things, that \u201cthe defendant, in burning the house, acted maliciously, with a fraudulent purpose . \u201d (Emphasis supplied.)\nIn these instructions the trial judge seems to have confused the common law crime of arson, for which defendant was indicted and which before the enactment of Chapter 1201, 1973 Session Laws, was a capital crime, with the general felony defined by G.S. 14-65. Common law arson is the wilful and malicious burning of the dwelling house of another person. State v. Arnold, 285 N.C. 751, 208 S.E. 2d 646 (1974) ; State v. Porter, 90 N.C. 719 (1884); 2 Wharton\u2019s Criminal Law and Procedure \u00a7 388 (1957) ; Curtis, The Law of Arson \u00a7 1 (1936). The statutory felony defined in G.S. 14-65 is committed when the occupant of a building used as, or the owner of a building designed or intended as, a dwelling house wantonly and wilfully \u201cor for a fraudulent purpose\u201d burns or causes it to be burned. The trial judge equated burning \u201cfor a fraudulent purpose\u201d with a \u201cwilful and malicious\u201d burning. In effect, he charged the jury that they could convict the defendant if it found that he burned Mose Watson\u2019s dwelling either wilfully and maliciously or with a fraudulent purpose.\nThe mental state denoted by the term \u201cwilful and malicious,\u201d is not the same as that denoted by the term \u201cfraudulent purpose.\u201d For a burning to be \u201cwilful and malicious\u201d in the law of arson it must simply be done \u201cvoluntarily and without excuse or justification and without any bona fide claim of right. An intent or animus against either the property itself or its owner is not an element of the offense\u201d of common law arson. 2 Wharton\u2019s Criminal Law and Procedure \u00a7 390; accord, Curtis, The Law of Arson \u00a7\u00a7 68-69; See also North Carolina Pattern Jury Instructions, Criminal, 215.10. Burning \u201cfor a fraudulent purpose,\u201d on the other hand, describes a mental state having to do with the desire for illegal pecuniary gain usually at the expense of the property\u2019s insurer. The gravamen of the offense of common law arson is the danger that results to persons who are or might be in the dwelling, whereas the main import of G.S. 14-65 is protection of the property itself. While burning the dwelling of Mose Watson for the purpose of frightening Watson and keeping him from testifying for the State would clearly be a wilful and malicious burning, we doubt that it would be a burning \u201cfor a fraudulent purpose.\u201d\nWe do not decide whether the precise use of the term made here by the able trial judge constituted legal error. It might be argued that he defined \u201cfraudulent purpose\u201d to be in this case burning of the dwelling for the purpose of intimidating its occupant, a State\u2019s witness. This act would also be a wilful and malicious burning. Since, the argument goes, two or more things equal to the same thing are equal to each other the charge is saved from error. Be that as it may, and without considering all the factual circumstances which may be embraced by the term \u201cfraudulent purpose,\u201d we believe that the concept has no place in a common law arson case. The better practice is to maintain a clear distinction between this ancient crime and burning for a fraudulent purpose as defined by G.S. 14-65.\nBecause the questions will probably arise at defendant\u2019s second trial we discuss assignments of error relating to the introduction of two confessions of the defendant, made at different times. According to the State\u2019s evidence the first one was made on May 4, 1974, in the presence of Detective L. E. Smith and SBI agents William Dowdy and Hugh Currin, Jr., in response to interrogation while they were transporting defendant by car from Patterson, New Jersey, where he had been extradited to North Carolina. This interrogation and confession occurred in the automobile shortly after 12:00 Noon before the car left Patterson. Evidence for the State on the question of the admissibility of this confession was that before making it defendant was fully advised of both his right to have counsel, either privately employed or court appointed, during questioning and his right to remain silent in accordance with Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), and that no promises or threats were made to defendant. Defendant replied that he understood his rights and \u201cwould proceed without an attorney.\u201d Defendant, on voir dire, admitted being given the Miranda warnings and that no coercion was used, but claimed that he asked for a lawyer. The trial court found facts in accordance with the State\u2019s evidence, found that defendant waived his right to counsel during this interrogation, that the confession was voluntary and concluded that it was admissible. There was ample evidence to support these findings, including the implied finding that defendant also waived his right to remain silent. Consequently, there was no error in admitting this confession.\nThe State also offered evidence that Delores Austin who had been brought to the Laurinburg Police Station on April 29, 1974, had on that date, after waiving her constitutional rights, made a statement essentially in accordance with her testimony at the trial. On May 4, 1974, while defendant was in custody at the Laurinburg Police Station he was again given full Miranda warnings after which he and Delores Austin were placed together in the same room. On a second voir dire hearing Detective Smith testified that Delores Austin repeated her statement in defendant\u2019s presence. He then asked the defendant:\n\u201c[I]f he heard and understood the statement that Delores had made and he said that he did. I asked him if he disagreed with anything \u2014 any part of the statement and he said that he did not, that she had told the truth and that this was the way it happened. The whole interview with Delores and the defendant took less than half an hour.\u201d\nAfter finding that this second statement of defendant was made \u201cafter he had been fully advised of his rights . . . and that it was freely and understandingly and voluntarily . . . made, without compulsion or duress or promise of leniency and is admissible\u201d the trial court permitted Detective Smith to testify before the jury that upon being confronted with the statement of Delores Austin defendant stated he did not disagree with it and what she said was true.\nOn this record this was prejudicial error.\nWith regard to defendant\u2019s second incriminating statement amounting, in effect, to another confession, there was neither evidence nor finding by the trial judge that defendant waived his right to remain silent or his right to have counsel present during this particular in-custody interrogation. \u201cWaiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.\u201d Miranda v. Arizona, supra; accord, State v. Turner, 281 N.C. 118, 187 S.E. 2d 750 (1972) ; State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971).' This second interrogation, moreover, was not part of the same transaction which produced defendant\u2019s first confession. It occurred a number of hours later (at least the number required to drive from Patterson, New Jersey, to Laurinburg) and was at a different place and under different circumstances. The State was not, therefore, entitled to rely on defendant\u2019s earlier waiver which had occurred in Patterson, New Jersey. Plis confession after waiver at that time \u201cexhausted the procedure\u201d to which the waiver applied. State v. Wright, 274 N.C. 84, 94, 161 S.E. 2d 581, 589 (1968).\nThe prejudice to defendant from erroneously admitting his second confession into evidence notwithstanding that an earlier confession was properly admitted is shown by what transpired at the trial after the jury had begun its deliberations. The jury returned into court to inquire whether it could hear again what defendant said to officers in New Jersey, Delores Austin\u2019s statement, and defendants\u2019 answers to Detective Smith\u2019s inquiries as to whether he agreed with her statement. During this episode one juror said, \u201cDid he agree with her statement or did he disagree. That\u2019s the hang-up. Did he disagree with her? Did he say that he didn\u2019t do it at the time or did he say that she was telling the truth?\u201d The trial court then summarized again for the jury his recollection of that portion of the State\u2019s evidence which was that defendant agreed Delores Austin was telling the truth. Defendant\u2019s statement made on the trip from New Jersey was not at this time reviewed.\nFor errors committed defendant is given a\nNew trial.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, and William F. O\u2019Connell, Assistant Attorney General, for the State.", "J. Robert Gordon for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOE LEWIS WHITE\nNo. 24\n(Filed 26 June 1975)\n1. Criminal Law \u00a7 117 \u2014 testifying accomplice \u2014 written, timely request for instruction \u2014 denial error\nIn a prosecution for first degree murder and common law arson where the evidence tended to show that defendant\u2019s girl friend at least aided and abetted him in the commission of those crimes and therefore was an accomplice, the trial court erred in denying defendant\u2019s request, made in writing and before argument to the jury, for an instruction on accomplice testimony.\n2. Criminal Law \u00a7 9 \u2014 accomplice defined\nAn accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender unites with him in the commission of the crime charged, either as a principal, as an aider and abettor, or as an accessory before the fact, and the generally accepted test as to whether a witness is an accomplice is whether he himself could have been convicted for the offense charged, either as a principal, or as an aider and abettor, or as an accessory before the fact, and if so, such a witness is an accomplice within the rules relating to accomplice testimony.\n3. Arson \u00a7 1 \u2014 common law arson \u2014 statutory felony \u2014 distinction\nCommon law arson is the wilful and malicious burning of the dwelling house of another person, while the statutory felony defined in G.S. 14-65 is committed when the occupant of a building used as, or the owner of a building designed or intended as, a dwelling house wantonly or wilfully or for a fraudulent purpose burns or causes it to be burned.\n4. Arson \u00a7 5\u2014 common law arson \u2014 instruction on burning for fraudulent purpose\nThe gravamen of the offense of common law arson is the danger that results to persons who are or might be in the dwelling, whereas the main import of G.S. 14-65 is protection of the property itself; therefore, the better practice is for the trial court to maintain a clear distinction between the wilful and malicious burning of common law arson and burning for a fraudulent purpose as defined by G.S. 14-65.\n5. Criminal Law \u00a7 75\u2014 in-custody statement \u2014 admission proper\nThe trial court did not err in allowing into evidence a statement made by defendant in the presence of two officers in response to interrogation while they were transporting him by car from N. J. to N. C., since the officers gave defendant the Miranda warnings, no promises or threats were made to defendant, and defendant stated that he understood his rights and would proceed without an attorney.\n6. Constitutional Law \u00a7 37; Criminal Law \u00a7 75 \u2014 two confessions \u2014 one waiver of rights \u2014 second confession inadmissible\nThe trial court erred in allowing into evidence testimony by an officer that defendant was given full Miranda warnings, he was then placed in the same room with his accomplice, the accomplice made a statement as to the circumstances preceding and during the crime, the officer asked defendant if he had heard and understood the statement, if he disagreed with it, and if the accomplice told the truth, and the officer testified that defendant stated he did not disagree with the statement and what the accomplice said was true, since there was neither evidence nor finding by the trial judge that defendant waived his right to remain silent or his right to have counsel present during this particular in-custody interrogation; moreover, this interrogation was not part of the same transaction which produced a prior confession and the State was not entitled to rely on defendant\u2019s earlier waiver of his rights.\nDependant appeals from two judgments of Clark, J., entered at the August 12, 1974 Session of Scotland Superior Court.\nDefendant was duly indicted in separate bills for first degree murder of one Mose Watson and for wilfully and maliciously burning Watson\u2019s dwelling house, i.e., common law arson. The indictments, returned at the June 24, 1974 Criminal Session of Scotland Superior Court, alleged that both offenses occurred on May 19, 1973, and were consolidated for trial. The jury returned verdicts of guilty as charged and judgments imposing the death penalty were entered in both cases.\nEvidence for the State was, briefly summarized, as follows: Mose Watson was the prosecuting witness in a case pending in Scotland County in which defendant\u2019s brother, Bunny White, was charged with burglary and robbery. Defendant and his girl friend, Delores Austin, attended the preliminary hearing of the charges against Bunny White after which defendant asked Delores Austin to help him kill Watson. He discussed the killing of Watson in the presence of Delores Austin thereafter \u201cdozens of times\u201d and stated on occasion that only he \u201chad nerve enough to do it.\u201d During the evening of May 19, 1973, defendant poured gasoline on and set fire to Watson\u2019s home knowing Watson was inside. Watson was burned to death.\nDefendant testified in his own behalf and denied the burning.\nRufus L. Edmisten, Attorney General, and William F. O\u2019Connell, Assistant Attorney General, for the State.\nJ. Robert Gordon for defendant appellant." }, "file_name": "0044-01", "first_page_order": 64, "last_page_order": 73 }