{ "id": 8565379, "name": "STATE OF NORTH CAROLINA v. SAMUEL McCOTTER", "name_abbreviation": "State v. McCotter", "decision_date": "1975-08-27", "docket_number": "No. 56", "first_page": "227", "last_page": "237", "citations": [ { "type": "official", "cite": "288 N.C. 227" } ], "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": "210 S.E. 2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "24 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548846 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/24/0076-01" ] }, { "cite": "94 N.C. 824", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652146 ], "opinion_index": -1, "case_paths": [ "/nc/94/0824-01" ] }, { "cite": "214 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631928 ], "opinion_index": -1, "case_paths": [ "/nc/214/0558-01" ] }, { "cite": "187 S.E. 2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "281 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573842 ], "year": 1972, "pin_cites": [ { "page": "106-107" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0100-01" ] }, { "cite": "171 S.E. 2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560417 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0142-01" ] }, { "cite": "187 S.E. 2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573255 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0665-01" ] }, { "cite": "168 S.E. 2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558758 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0342-01" ] }, { "cite": "208 S.E. 2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569743 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0708-01" ] }, { "cite": "185 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569703 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0031-01" ] }, { "cite": "200 S.E. 22", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1938, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "232 U.S. 642", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3671681 ], "weight": 6, "year": 1914, "pin_cites": [ { "page": "646" }, { "page": "457" }, { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/us/232/0642-01" ] }, { "cite": "162 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141268 ], "weight": 7, "year": 1896, "pin_cites": [ { "page": "637-638" }, { "page": "956" }, { "page": "1100" }, { "page": "643" }, { "page": "958" }, { "page": "1102" } ], "opinion_index": 0, "case_paths": [ "/us/162/0625-01" ] }, { "cite": "210 S.E. 2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "24 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548846 ], "year": 1974, "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/24/0076-01" ] }, { "cite": "94 N.C. 824", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652146 ], "weight": 2, "pin_cites": [ { "page": "825" } ], "opinion_index": 0, "case_paths": [ "/nc/94/0824-01" ] }, { "cite": "214 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631928 ], "opinion_index": 0, "case_paths": [ "/nc/214/0558-01" ] } ], "analysis": { "cardinality": 993, "char_count": 22651, "ocr_confidence": 0.58, "pagerank": { "raw": 2.545089870833437e-07, "percentile": 0.8137926187974666 }, "sha256": "6327b24d1b471dae5dbd3f81c0b111a566d52ffd6e6e51d84307ae59a6ba931f", "simhash": "1:374a64a2f30c22cf", "word_count": 3899 }, "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. SAMUEL McCOTTER" ], "opinions": [ { "text": "SHARP, Chief Justice.\nIn criminal practice arraignment is the formal act of calling a defendant by name to the bar of the court, informing him of the offense with which he is charged, demanding of him whether he is guilty or not guilty, and entering his plea. See Crain v. United States, 162 U.S. 625, 637-638, 16 S.Ct. 952, 956, 40 L.Ed. 1097, 1100 (1896) ; Ballentine\u2019s Law Dictionary (1948 Ed.) ; Black\u2019s Law Dictionary (Revised 4th Ed., 1968) ; 22 C.J.S., Criminal Law \u00a7 406 (1961).\nIn 1890, in Crain v. United States, supra, the Supreme Court reversed a felony conviction because the record failed to show that the accused was ever formally arraigned. Mr. Justice Harlan, speaking for six members of the Court, said: \u201c [W] e think it may be stated to be the prevailing rule, in this country and in England, at least in cases of felony, that a plea to the indictment is necessary before the trial can be properly commenced, and that unless this fact appears affirmatively from the record the judgment cannot be sustained.\u201d Id. at 643, 16 S.Ct. at 958, 40 L.Ed. at 1102. Mr. Justice Peckham, with whom two members of the Court concurred, wrote a dissenting opinion which was to become the law twenty-four years later when the Supreme Court overruled Crain v. United States in Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914).\nIn Garland v. Washington, speaking for a unanimous Court, Mr. Justice Day said with reference to Crain v. United States:\n\u201cSuch rulings originated in that period of English history when the accused was entitled to few rights in the presentation of his defense, when he could not be represented by counsel, nor heard upon his own oath, and when the punishment of offenses, even of a trivial character, was of a severe and often of a shocking nature. Under that system the courts were disposed to require that the technical forms and methods of procedure should be fully complied with. But with improved methods of procedure and greater privileges to the accused, any reason for such strict adherence to the mere formalities of trial would seem to have passed away, and we think that the better opinion, when applied to a situation such as now confronts us, was expressed in the dissenting opinion of Mr. Justice Peckham, speaking for the minority of the court in the Crain Case, when he said:\n\u201c \u2018Here the defendant could not have been injured by an inadvertence of that nature. He ought to be held to have waived that which under the circumstances would have been a wholly unimportant formality. A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the- record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.\u2019 \u201d Id. at 646, 34 S.Ct. at 457, 58 L.Ed. at 775.\nThe logic of the words of Mr. Justice Peckham is inescapable, and his words are applicable in toto to this case. Today the modern trend is that \u201c [a] rraignment may be waived by pleading not guilty or by silence, at least in all except capital cases, if the accused is fully informed as to the charge and is not otherwise prejudiced in the trial of the case by the omission of that formality.\u201d 21 Am. Jur. 2d, Criminal' Law \u00a7 457 (1965) ; 22 C.J.S., Criminal Law \u00a7 408 (1961).\nThe opinion of the Court of Appeals in this case made it quite clear that, in awarding defendant a new trial because of the record\u2019s failure to show his arraignment, it acted under the compulsion of this Court\u2019s decision in State v. Lueders, 214 N.C. 558, 200 S.E. 22 (1938).\nIn Lueders the defendant was tried upon a warrant which charged him with \u201cpracticing photography without a license and without being registered with the State Board of Photographic Examiners\u201d in violation of Chapter 155, Public Laws of 1935. The \u201cfrankly avowed\u201d purpose of Lueders\u2019 appeal was to test the constitutionality of the law under which the warrant was drawn. The case was originally tried in the Greensboro municipal court. The defendant was convicted and appealed to the Superior Court. There, upon an agreed statement of facts, the jury returned the following verdict: \u201cUpon the foregoing statement of agreed facts, the jury for its verdict finds the defendant guilty.\u201d\nTo justify avoiding the constitutional question presented, this Court noted \u201ccertain irregularities\u201d appearing on the face of the record: (1) \u201c[T]he defendant entered no plea in the Superior Court, where, on appeal, the cause was to be tried de novo.\u201d (2) \u201c[T]he verdict of the jury was rendered on an agreed statement of facts, and the defendant excepts to the verdict. . . . There is no contention that the verdict is a special one.\u201d Id. at 560, 200 S.E. at 23.\nWith reference to the first irregularity the Court said: \u201cIn the absence of a plea to the indictment or charge, there was nothing for the jury to determine.\u201d Id. In support of this statement Chief Justice Stacy relied upon the rationale of Ashe, J., \u201cspeaking to a similar situation\u201d in State v. Cunningham, 94 N.C. 824, 825 (1886), that where defendant filed no plea there was no issue to be submitted to the jury; that consequently the verdict returned was a nullity, and no judgment could be pronounced upon such a verdict.\nIn Cunningham, Justice Ashe also noted that the Superior Court had no jurisdiction of the simple assault with which defendant was charged because The Code gave exclusive original jurisdiction of offenses to Justices of the Peace during the six months following the assault.\nObviously, both the substantive and procedural facts of Lueders and Cunningham differ materially from those of this case. Further, as noted in the opinion of the Court of Appeals, the facts in each of the other cases cited in the Lueders\u2019 opinion are not comparable. See State v. McCotter, 24 N.C. App. 76, 77, 210 S.E. 2d 91, 92 (1974).\nIn this case there can be no doubt either that defendant was fully aware of the charge against him or that he was in nowise prejudiced by the omission of a formal arraignment \u2014 if indeed it was omitted. When the case was called for trial defendant\u2019s first motion was to quash the bill of indictment because \u201ca charge of conspiracy violated his rights under the Constitutions.\u201d At the beginning of his charge Judge Exum read the bill of indictment to the jury and then said, \u201cTo this charge the defendant has entered a plea of not guilty.\u201d Neither defendant nor his counsel arose to deny that he had entered such a plea. Under-all the circumstances the judge\u2019s recitals are entitled to full faith and credit.\nFrom beginning to end, defendant\u2019s trial was a completely adversary proceeding. While the record is silent as to defendant\u2019s arraignment, it shows that he was tried as if he had been arraigned and had entered a plea of not guilty. In such case the absence of formal arraignment does not constitute reversible error, and the statements in State v. Lueders, supra, and State v. Cunningham, supra, are nullified.\nWe hold that the Court of Appeals erred in ordering a new trial because of the failure of the record to show defendant\u2019s formal arraignment. Its decision, therefore, is reversed.\nBecause the Court of Appeals ordered a new trial upon a ground it held to be a threshold error, it considered only that one assignment. Ordinarily our review is restricted to the rulings of the Court of Appeals which are challenged in the petition for certiorari or on direct appeal and brought forward in appellant\u2019s brief filed in this Court. This case, however, is unusual in that it is a criminal case in which the State appeals to this Court. For that reason we elect to consider defendant\u2019s remaining assignments of error. See State v. Muse, 280 N.C. 31, 185 S.E. 2d 214 (1971). (With respect to appeals taken on or after July 1, 1975 which involve this situation, see North Carolina Rules of Appellate Procedure, Rule 16(a) (1975)).\nDefendant\u2019s second assignment is that the court erred in denying his motion \u201cfor a continuous for the appointment of additional counsel.\u201d In reply to the judge\u2019s inquiry, defendant said that he was not dissatisfied with his court-appointed attorney ; he did not suggest his counsel was incompetent. He merely said he felt he needed more than one attorney. In view of the uncontradicted evidence of defendant\u2019s guilt of the crime charged, there is no reason to believe that additional attorneys could have been of assistance. Obviously, defendant\u2019s real need was for a witness.\nAs another ground for continuance, defendant argued that he had been prejudiced by the solicitor\u2019s statement, made at the beginning of the term and in the presence of the jury, that he had known Judge Exum all his life and admired him as a person and a judge. Defendant said he felt the compliment which the solicitor paid the judge \u201cwould tie the solicitor in closer to the judge,\u201d and that \u201cthey would give more credence to the State\u2019s witnesses.\u201d The judge then explained to defendant that \u201cthe District Solicitor is not trying the case; the assistant solicitor is trying the case.\u201d Defend\u00e1nt\u2019s reply to that was, \u201cHe is just as bad. Whatever they are doing when they do it, they are trying to do it to me.\u201d\n\u25a0 Upon the grounds stated, defendant\u2019s motion for a continuance was addressed to the sound discretion of the trial judge, and his ruling-thereon is not subject to review absent an abuse of discretion. Continuances should not be granted unless some reason is established. State v. Rigsbee, 285 N.C. 708, 208 S.E. 2d 656 (1974). No abuse of discretion has been shown.\nDefendant\u2019s assignment that the court erred in permitting Banks to testify that he and defendant escaped from jail on May 16th is patently feckless. This statement introduced Banks\u2019 testimony that it was while they were on escape that defendant made contact with that \u201ccold hearted young man,\u201d Chuck Lindsey, and that he told Banks he had asked Lindsey to shoot Mrs. Waldo. The purpose of this testimony was not to show that defendant had committed the crime of escape, but to explain the circumstances under which he made the incriminatory statements which Banks related from the witness stand. This assignment is obviously without merit. Equally meritless is the fifth ground upon which defendant contends his conviction should be reversed, that is, that the judge erred \u201cin failing to quash the indictment and in failing to grant his motion for nonsuit.\u201d See State v. Conrad, 275 N.C. 342, 168 S.E. 2d 39 (1969).\nDefendant\u2019s final assignments of error raise the question, \u201cDid the trial judge err in allowing hearsay testimony?\u201d The answer is No. The only incompetent hearsay which appears in the record was elicited during the examination of Sergeant Windham, who \u2014 for the purpose, of corroborating testimony of Swift \u2014 was asked to relate what statements Swift had made to him concerning Mrs. Graham and defendant. He testified to one statement which was not corroborative. This testimony, which is quoted in the preliminary statement, was immediately stricken by the judge, who also instructed the jury to disregard it.\nWe hold that the court\u2019s specific instructions to the jury not to consider the stricken statement but to erase it from their minds, was sufficient to prevent any prejudice from it. See State v. Self, 280 N.C. 665, 187 S.E. 2d 93 (1972) ; State v. Moore, 276 N.C. 142, 171 S.E. 2d 453 (1970). Furthermore, in view of the plenary competent, substantive evidence tending to establish the conspiracy charged, the admission of the stricken evidence was harmless beyond a reasonable doubt. We note that Swift herself testified she delivered to defendant a picture of Mrs. Waldo, which Mrs. Graham had given her. \u201cUnless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless.\u201d State v. Hudson, 281 N.C. 100, 106-107, 187 S.E. 2d 756, 761 (1972).\nAfter a careful examination of the record and of all defendant\u2019s assignments of error, we find no error in the trial below. The decision of the Court of Appeals is\nReversed.\nJustice Exum did not participate in the hearing or decision of this case.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, R. Bruce White, Jr., Deputy Attorney General, and Zoro J. Guice, Jr., Assistant Attorney General, for the State.", "Michael P. Flanagan for defendant appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SAMUEL McCOTTER\nNo. 56\n(Filed 27 August 1975)\n1. Criminal Law \u00a7 22\u2014 arraignment defined\nIn criminal practice arraignment is the formal act of calling a defendant by name to the bar of the court, informing him of the offense with which he is charged, demanding of him whether he is guilty or not guilty, and entering his plea.\n2. Criminal Law \u00a7 22\u2014 failure of record to show arraignment\nDefendant is not entitled to a new trial because of the failure of the record to show a formal arraignment where the record shows that he was tried as if he had been arraigned and had entered a plea of not guilty. Statements to the contrary in State v. Lueders, 214 N.C. 558, and State v. Cunningham, 94 N.C. 824, are nullified.\n3. Criminal Law \u00a7 91\u2014 motion for continuance \u2014 appointment of additional attorney \u2014 solicitor\u2019s compliment to trial judge\nThe trial court did not err in the denial of defendant\u2019s motion for a continuance for the appointment of an additional attorney where defendant stated that he was not dissatisfied with his court-appointed attorney but felt he needed more than one attorney; nor did the trial court err in the denial of the motion for continuance on the ground that, at the beginning of the term and in the presence of the jury, the solicitor stated that he had known the trial judge all his life and admired him as a person and a judge.\n4. Criminal Law \u00a7 34\u2014 testimony showing another crime \u2014 circumstances of incriminating statements\nIn a prosecution for conspiracy to commit murder, the trial court did not err in permitting a witness to testify that he and defendant escaped from jail where the purpose of the testimony was not to show that defendant had committed the crime of escape but to explain the circumstances under which defendant made incriminatory statements relating to the conspiracy charge to which the witness testified.\n5. Criminal Law \u00a7 89\u2014 noncorroborative hearsay \u2014 harmless error\nIn a prosecution for conspiracy to commit murder, defendant was not prejudiced by an officer\u2019s testimony as to one statement made to him by a witness which did not corroborate the testimony of the witness where the court immediately struck the testimony and instructed the jury to disregard it; furthermore, the admission of the stricken testimony was harmless beyond a reasonable doubt in view of the plenary competent, substantive evidence tending to establish the conspiracy charged.\nJustice Exum did not participate in the hearing or decision of this case.\nAppeal by. the State pursuant to G.S. 7A-30(2) from the decision of the Court of Appeals, reported in 24 N.C. App. 76, 210 S.E. 2d 91 (1974), which reversed the judgment entered by Exum, J., at the 25 February 1974 Session of the Superior Court of Craven.\nDefendant was convicted upon an indictment which charged that on 1 March 1973 he did \u201cfeloniously agree, plan, combine, conspire and confederate\u201d with Jacqueline B. Graham to kill and murder Mary Patricia Elizabeth McGrath Waldo (Mrs. Waldo). The evidence for the State tended to show:\nOn the night of 21 April 1973, Mrs. Waldo visited a patient at the Craven County Hospital. Upon leaving she went to the parking lot and, as she attempted to start her automobile, she Was shot in the head through the right front window. The shot shattered the glass and left seven or eight p.ellet. holes. in the sun visor. Mrs. Waldo, bleeding very badly, got out of the car and slumped to the pavement. Someone came to her aid, and she was taken into the emergency room. Af er being x-rayed she was transferred to the Greenville Hospital. She testified that for about six weeks afterwards, \u201cpieces of shot were pulled out of her head.\u201d\nVernie Swift (Swift), who worked at the Marine Naval Rework Facility (NARF) at Cherry Point, is a relative of defendant. She testified that she first met Mrs. Jacqueline B. Graham, a resident of Havelock, in February 1973 at a \u201cWoman\u2019s Liberation meeting\u201d over which Mrs. Waldo was presiding. After that meeting she continued to see and converse with Mrs. Graham. Once she helped Mrs. Graham clean house. One evening \u2014\u201cit could have been between March or April\u201d \u2014 Mrs. Graham took Swift to New Bern and Swift introduced her to defendant. On two or three other occasions she was in the presence of both of these people. One time the three were together at or near a \u201crest area\u201d four miles outside New Bern, where Mrs. Graham and defendant discussed \u201cways and means of getting rid of Mrs. Waldo. . . . There was a plan made that day.\u201d\nThereafter, from time to time, Swift delivered messages from Mrs. Graham to defendant \u2014 \u201cmessages like to tell Sammy [Samuel McCotter] to call her. It was urgent that he call her.\u201d Mrs. Graham gave Swift a picture of Mrs. Waldo which Swift delivered to defendant. She never carried any messages from defendant back to Mrs. Graham.\nOnce, after a \u201cliberation meeting,\u201d Mrs. Graham met Swift in the lobby of NARF and gave her an envelope containing money, which Swift delivered to defendant. The money was counted in her presence and Swift saw $250.00. Later, in the ladies\u2019 restroom at NARF, Mrs. Graham gave Swift more money \u201cin a ball, with a twenty-dollar bill on the outside.\u201d Swift also delivered this money to defendant.\nAfter Mrs. Waldo was shot, Swift talked to Detective Sergeant Windham of the New Bern Police Department. He came to Cherry Point, and she told him everything she knew about this case.\nVance Banks, who was confined in the Craven County jail upon a charge of breaking and entering, was put in the same cell with defendant. Except when quoted, Banks\u2019 testimony is summarized as follows:\nDuring the night of May 16th Banks \u201coverpowered Mr. Chamblee\u201d (presumably the jailer) and took his gun away from him. Then Banks, defendant \u201cand another man, whose first name is John,\u201d escaped. About 2:00 a.m. defendant and Banks went to the house of Bud Moses, a quarter of a mile from the jail. About 8:00 a.m. a young lady came in, and Sam had a conversation with her. After that, \u201che got another young lady by the name of Tanya.\u201d After a brief conversation with Tanya, he sent her to get a man by the name of Charles Lindsey, who (defendant said) was a \u201ccold hearted young man.\u201d After four or five minutes, defendant told Banks that \u201cthis girl Jacqueline had hired him to shoot Mrs. Waldo . . . and he has asked Chuck Lindsey to do it\u201d; that if \u201cJackie\u201d had kept her mouth closed nobody would have found out about it. Banks had seen Officer Windham several times and had talked to him at least one time while he was in .jail.\nDetective Sergeant Windham investigated the shooting of Mrs. Waldo on the night of 21 April 1973 and, in the course of the investigation, he had a conversation with Swift at NARF at Cherry Point. At that time she made a statement to him with reference to \u201cthe incident at the Craven County Hospital\u201d and \u201cconcerning Sam McCotter and Jacqueline Graham.\u201d Over defendant\u2019s objection Windham testified:\n\u201cVerna Swift told me that on a date in either late February or early March, she met with Mr. McCotter and Mrs. Graham in New Bern. They drove to a rest area about four miles outside of New Bern, and Mr. McCotter and Mrs. Graham discussed ways to kill Mrs. Waldo. That following that meeting, she carried some messages from Mrs. Graham to Mr. McCotter. That she did deliver some of the messages and some others she did not. That several weeks after the Highway 70 East meeting, Mrs. Swift delivered a sum of money from Mrs. Graham to Mr. McCotter. That after the next pay day she delivered a second sum of money. . . . That she delivered a photograph to Sam McCotter that Jacqueline Graham had given her. . . . She said it was a picture of Mary Patricia Waldo.\u201d\nBefore Judge Exum admitted the foregoing testimony, he instructed the jury that Swift\u2019s statement to Windham was not substantive evidence of the facts she had related to him; that it was admitted solely for the purpose of corroborating the testimony Swift had given from the witness stand if the jury should find that it did corroborate her testimony.\nWindham also testified that Swift stated to him that \u201cone afternoon in March, Mrs. Waldo was to visit a home of a friend that had died and that Mrs. Graham and Mr. McCotter and herself went to Havelock and the purpose of this was for Mrs. Graham to point Mrs. Waldo out to Sam.\u201d Upon defendant\u2019s motion to strike this statement Judge Exum sustained the motion and instructed the jury \u201cto strike\u201d it from their minds and \u201cnot to consider it in any way in this case.\u201d\nWindham\u2019s testimony further tended to show: Defendant was arrested on or about 2 May 1973. Thereafter, during the month of June 1973, he had a conversation with Vance Banks at the Craven County jail. At that time Banks stated to Wind-ham that after he and defendant left the Craven County jail they went to \u201cMoses\u2019 house\u201d; that a young lady came into the house and defendant sent her for a second young lady named Tanya and then sent Tanya to get a man named Chuck; that Sam told Banks at that time, \u201cThis is a cold hearted young man that I just sent for; he is the gunman\u201d; that defendant also told Vance \u201che was hired by Jacqueline Graham to kill Mrs. Waldo; that he in turn hired Charles Lindsey to do the shooting.\u201d This statement was admitted over defendant\u2019s objection, and after Judge Exum had given the jury the same limiting instruction which preceded the admission of Swift\u2019s statement to Windham. Wind-ham\u2019s testimony concluded the State\u2019s case. Defendant\u2019s motion for judgment as in case of nonsuit was denied and defendant chose to introduce no evidence.\nUpon the jury\u2019s verdict finding defendant \u201cguilty as charged,\u201d the court adjudged that defendant be imprisoned for ten years in the State Prison. Upon appeal, the Court of Appeals reversed defendant\u2019s conviction and ordered a new trial upon the sole ground that the record failed to show the arraignment of defendant. One member of the panel having dissented, the State appealed to this Court as a matter of right.\nRufus L. Edmisten, Attorney General, R. Bruce White, Jr., Deputy Attorney General, and Zoro J. Guice, Jr., Assistant Attorney General, for the State.\nMichael P. Flanagan for defendant appellee." }, "file_name": "0227-01", "first_page_order": 247, "last_page_order": 257 }