{ "id": 8571208, "name": "STATE OP NORTH CAROLINA v. ELZIE McCALL", "name_abbreviation": "Carolina v. McCall", "decision_date": "1976-04-06", "docket_number": "No. 20", "first_page": "570", "last_page": "578", "citations": [ { "type": "official", "cite": "289 N.C. 570" } ], "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": "79 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698099 ], "year": 1878, "opinion_index": 0, "case_paths": [ "/nc/79/0627-01" ] }, { "cite": "81 S.E. 933", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "opinion_index": 0 }, { "cite": "165 N.C. 605", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660692 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/nc/165/0605-01" ] }, { "cite": "64 S.E. 199", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1909, "opinion_index": 0 }, { "cite": "150 N.C. 846", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273181 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/nc/150/0846-01" ] }, { "cite": "1 S.E. 2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629816 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0387-01" ] }, { "cite": "12 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "218 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622881 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/218/0592-01" ] }, { "cite": "72 S.E. 2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "236 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625632 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/236/0358-01" ] }, { "cite": "94 S.E. 2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219516 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0524-01" ] }, { "cite": "158 S.E. 2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573381 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0463-01" ] } ], "analysis": { "cardinality": 744, "char_count": 16773, "ocr_confidence": 0.65, "pagerank": { "raw": 2.1703722961462434e-07, "percentile": 0.7709686935415926 }, "sha256": "fec0b8ad3a8fcc01e298a4190d686ded419061a120c78eac308fadc3113613bb", "simhash": "1:c1a180d38c35d143", "word_count": 2998 }, "last_updated": "2023-07-14T21:21:01.191113+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OP NORTH CAROLINA v. ELZIE McCALL" ], "opinions": [ { "text": "HUSKINS, Justice.\nDefendant moved to nonsuit the first degree murder charge on the ground that evidence of premeditation and deliberation was insufficient to carry the capital charge to the jury. Denial of the motion is assigned as error. When the evidence is taken as true and considered in the light most favorable to the State, as we are required to do, it is sufficient to carry the case to the jury on all counts encompassed by the bill of indictment. We overrule this assignment without further discussion.\nViola McCall was an eyewitness to the shooting of her son by .defendant on 26 January 1975. She thereafter married defendant on 26 April 1975. She attended defendant\u2019s trial but was not examined as a witness by him.\nAfter defendant had testified that he and Viola McCall were not married on 26. January 1975 when the homicide occurred but \u201cwere making plans,\u201d the district attorney was permitted over objection to cross-examine him as follows:\n\u201cQ. You knew if you married her she couldn\u2019t testify against you, didn\u2019t you?\nA. Yes, I knew it.\u201d\nThe district attorney then continued his cross-examination without further objection as follows:\n\u201cQ. All right, you had been courting her for three years, and you hadn\u2019t married her during that three years, but as soon as she became eligible to testify against you as to what happened when you shot Brent, you married her in April, 1975, didn\u2019t you?\nA. I can\u2019t answer that question.\nQ. Why can\u2019t you answer it?\nA. Because you stated it wrong.\nQ. Well, you just state to the jury how it happened then.\nA. What?\nQ. How you happened to marry Viola knowing that she could be compelled to testify against you after the killing in January, 1975, happened to marry her in April, 1975?\nA. I put in for my divorce in November and I had a year to wait. I discussed the matter with Brent, and I discussed the matter of marriage with Viola. Viola and I had plans to marry long before this incident occurred.\u2019 I filed separation papers in November of 1973, and to the best of my knowledge I got my divorce in February, 1975, in Asheville, North Carolina. Mr. Potts, my attorney, represented me in my divorce, and Mr. Potts is my lawyer in this case.\u201d\nThereafter, the district attorney, without objection, made the following argument to the jury:\n\u201cWhile we are talking about Viola, you know I was glad Mr. Potts pointed her out. Really, I was glad that Mr. Potts pointed her out to let you know that she was in the Courtroom. Let me tell you something the State of North Carolina cannot put her on the stand, but she can voluntarily go on the stand and her husband can call her. Her husband can call her on the stand if he wants to and Mr. Potts can put her on there. I can\u2019t touch her. I wish I could have, but Mr. Potts could put her on there. If what Elzie said was the truth, why didn\u2019t Mr. Potts put her on the stand? I\u2019ll tell you why he didn\u2019t put her on the stand because he knew I would have the right to examine her, cross examine her. The law of North Carolina is that a wife cannot testify against her husband. This is a good law, and I\u2019m glad we have it, because the home ought to be the most important and that\u2019s the foundation, of this country, is the home and the family, and until she married Brent \u2014 Elzie McCall in April, 1975, I could have put her on the stand. If this case had been tried in January or February, 1975, I could have put her on the stand and let her tell you exactly what she saw. She was standing right outside of the house. She said she was \u2014 that\u2019s Elzie\u2019s testimony. He said that she went right over to Brent right after he was shot and gave him mouth to mouth resuscitation. Why in the world didn\u2019t she corroborate what her husband said about it, her present husband, if that\u2019s the way it happened ? There was only three people there. That was Brent, Viola and Elzie, and Brent can\u2019t talk.\n\u201cIs there any question in your mind that that young boy was lying right here when his mother came over to him and started giving him mouth to mouth resuscitation? Do you know what she did whenever she went down to South Carolina in April, 1975, and performed a ceremony of matrimony with this man right here? She sealed her lips forever to be required by the State of North Carolina to tell you the truth about what happened on January the 26th, 1975. You ought to go take the flowers off your son\u2019s grave. Any woman that would do that. It\u2019s just as bad as her going and taking the flowers off her son\u2019s grave, because he was a human being. He was entitled to live and because she wanted to have some personal enjoyment and pleasures with her boyfriend because he had worn out his previous wife, then she goes and seals her lips. Are you going to turn this man loose because of that? If you do, you do. I\u2019ll tell you it makes my blood boil and if there\u2019s anything that I could do under the law of the State of North Carolina, I\u2019ll guarantee you, I\u2019d do it or I\u2019d try to do it.\u201d\nThe quoted cross-examination of defendant constitutes his first assignment of error. The quoted argument of the district attorney to the jury constitutes defendant\u2019s second assignment of error. The failure of the trial court to instruct the jury that (1) defendant\u2019s wife could not be compelled to testify against him and (2) the fact that defendant chose not to call his wife as a witness could not be used to the prejudice of the defense, constitutes defendant\u2019s third assignment of error. These assignments being interrelated, we consider them together.\nG.S. 8-57 reads in pertinent part as follows: \u201cThe husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the failure of such witness to be examined shall not be used to the prejudice of the defense.\u201d By virtue of this statute defendant\u2019s wife was not a competent witness to testify against him, and her failure to testify for him could not be used to his prejudice.\nIn State v. Porter, 272 N.C. 463, 158 S.E. 2d 626 (1968), defendant was not represented by counsel. His wife was called by the State as a witness and testified that she saw what happened when defendant allegedly assaulted her sister. No exception was taken to his wife\u2019s testimony, but the question was raised on appeal to this Court. Held: \u201cOrdinarily, failure to object in apt time to incompetent testimony will be regarded as a waiver of objection, and its admission is not assignable as error, but this rule is subject to an exception where the introduction or use of the evidence is forbidden by statute as here by the provisions of G.S. 8-57. When the evidence rendered incompetent by statute was admitted, it became the duty of the trial judge to exclude the testimony, and his failure to do so must be held reversible error whether exception was noted or not.\u201d\nIn State v. Dillahunt, 244 N.C. 524, 94 S.E. 2d 479 (1956), a State\u2019s witness testified without objection that defendant\u2019s wife made a statement that shortly before the assault for which her husband was on trial, the prosecuting witness passed her mother\u2019s house in a car and her husband followed him. Held: Under the provisions of G.S. 8-57 neither the husband nor the wife is competent to testify against the other, and the prohibition extends to declarations made by one spouse not in the presence of the other. \u201cIt is the duty of the presiding judge to exclude such evidence. Objection is not necessary.\u201d To like effect is State v. Warren, 236 N.C. 358, 72 S.E. 2d 763 (1952).\nIn State v. Helms, 218 N.C. 592, 12 S.E. 2d 243 (1940), the solicitor in his argument to the jury called attention to the fact that defendant\u2019s wife had not testified in his behalf. This occurred during the temporary absence of the judge who, upon return to the courtroom, sustained defendant\u2019s objection. Near the conclusion of the court\u2019s charge to the jury the judge st\u00e1ted that the law did not permit such comment and that the jury should not let the argument influence it. Held: The solicitor\u2019s comment violated the statute, C.S. \u00a7 1802 (now G.S. 8-57), was prejudicial, and \u201ccalled for prompt, peremptory and certain caution to the jury, not only that the jury should disregard the argument but that the failure of the wife of defendant to be examined as a witness in his behalf should not be used to the prejudice of defendant. Even then, it may be fairly doubted that the harmful effects of such argument could have been dispelled from the minds of the jury. We are of the opinion, and hold, that merely sustaining the objection is not sufficient caution. Nor does the caution later given by the court free the case of the prejudice already done to the rights of defendant.\u201d\nIn State v. Watson, 215 N.C. 387, 1 S.E. 2d 886 (1939), the solicitor, over objection, in the course of his argument to the jury commented upon the failure of the defendant to call his wife as a witness. Held: The argument of the solicitor runs counter to the prohibitory provisions of C.S. \u00a7 1802 (now G.S. 8-57) and is prejudicial error.\nIn State v. Cox, 150 N.C. 846, 64 S.E. 199 (1909), the State subpoenaed the wife of the defendant together with other witnesses. At trial the State tendered her to the defendant and the solicitor, in his argument to the jury, commented upon the failure of the defendant to corroborate his own testimony by the testimony of his wife. On objection made the court stated that the wife was not competent and would not be allowed to bear witness against her husband; that her testimony would be competent only in behalf of her husband and not against him; and that since she had not testified, the jury could not consider what she knew or did not know. In his charge, the court told the jury \u201cit was not for the State to examine the wife of the defendant as a witness against her husband, but it was competent for the defendant to use her as a witness.\u201d .Held: The tender of the wife by the State and the comments of the solicitor called attention to the failure of the defense to examine defendant\u2019s wife. The judge\u2019s neglect to instruct the jury not to consider such failure to use the wife as a witness was prejudicial error.\nThe provisions of G.S. 8-57, and decisions of this Court interpreting and applying them, impel the conclusion that where evidence is rendered incompetent by statute, it is the duty of the trial judge to exclude it, and his failure to do so is reversible error, whether objection is interposed and exception noted or not. Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933 (1914). In such case it is the duty of the judge to act on his own motion. State v. Porter, supra; State v, Ballard, 79 N.C. 627 (1878). The rule applies with equal force to the argument of counsel when evidence forbidden by statute is argumentatively placed before the jury and used to the prejudice of the defense. When this occurs it is the duty of the judge ex mero motu to intervene and promptly instruct the jury that the wife\u2019s failure to testify and the improper argument concerning that fact must be disregarded and under no circumstances used to the prejudice of the defendant.\nFor the reasons stated, defendant\u2019s first, second and third assignments are well taken and must be sustained. This requires a\nNew trial.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Stepp, Groce, Pi\u00f1ales & Cosgrove by W. Harley Stepp, Jr. and Edwin R. Groce, attorneys for defendant appellant.", "Rufus L. Edmisten, Attorney General; Thomas B. Wood, Assistamt Attorney General, for the State of North Carolina." ], "corrections": "", "head_matter": "STATE OP NORTH CAROLINA v. ELZIE McCALL\nNo. 20\n(Filed 6 April 1976)\nCriminal Law \u00a7\u00a7 83, 162, 163\u2014 competency of wife to testify against husband\u2014 failure to object to jury argument and charge\nWhere evidence is rendered incompetent by statute, it is the duty of the trial judge to exclude it, and his failure to do so is reversible error, whether objection is interposed and exception noted or not; therefore, the trial court in a first degree murder prosecution erred in (1) allowing cross-examination of defendant with respect to his wife\u2019s failure to testify, (2) allowing the district attorney\u2019s jury argument concerning the failure of defendant\u2019s wife to testify, and (3) failing to instruct the jury that defendant\u2019s wife could not be compelled to testify against him and that the fact that defendant chose not to call his wife as a witness could not be used to the prejudice of the defense. G.S. 8-57.\nDefendant appeals from judgment of Grist, JJuly 1975 Criminal Session, Transylvania Superior Court.\nDefendant was placed on trial upon a bill of indictment, proper in form, charging him with first degree murder of Brent McCall on 26 January 1975 in Transylvania County.\nThe State\u2019s evidence tends to show that on 26 January 1975 defendant shot and killed Brent McCall with a 30-30 rifle. The homicide occurred in the yard of a house owned by Viola McCall and occupied by her son Brent McCall. The only persons present when the shooting occurred were Viola McCall, Brent McCall, and the defendant. A neighbor named Otis Morgan heard the shot and went to the scene. Defendant stated to Mr. Morgan that he had told Brent McCall \u201cthat if Brent McCall ever got into it with Elzie McCall again that he, Elzie McCall, would kill Brent and then Elzie said \u2018There he lays.\u2019 \u201d Mr. Morgan testified that defendant was drinking and appeared to be under the influence of alcohol. No weapon was observed in Brent McCall\u2019s hand or on the ground in the area where his body was lying.\nThe State\u2019s evidence further tends to show that defendant and Viola McCall had been living together in defendant\u2019s trailer for about nine months. During that period defendant was separated from his lawful wife. He obtained a divorce in February 1975 and married Viola McCall on 26 April 1975.\nThe State\u2019s evidence further indicates that defendant got along well with Brent McCall except when Brent was drinking. Brent had a violent temper when drinking and would tear up the house and often assault his mother when she was present to clean and cook for him.\nFollowing the shooting, officers were called and defendant was taken into custody. While being transported to jail, defendant was warned of his rights and stated he had nothing to hide. He told the officers he had drunk about a half pint of whiskey in the eight hours preceding the shooting and had been asleep about three hours before he shot Brent McCall. He said that Brent had \u201cbeat[en] me and his mother three times and I told him that if he did it again, I would kill him.\u201d\nDefendant testified as a witness in his own behalf. He said he arrived at Brent McCall\u2019s place of residence about 3 p.m. on 26 January 1975, went to bed and slept for about three hours. When he awakened, Brent McCall came into the bedroom and they had a friendly conversation. When Viola McCall finished mopping the kitchen, she got her pocketbook and prepared to leave. Brent McCall knocked some items from the counter to the kitchen floor, looked over at defendant and said, \u201cYou are going to buy me a pint of whiskey before you go home.\u201d When defendant told Brent he did not have the money to buy a pint of whiskey, Brent attacked defendant, knocking him to the floor. Brent McCall weighed about 180 pounds, while defendant weighed 140 pounds. After Brent knocked defendant down he took him by the right arm and began slinging him around. Defendant went to his truck and attempted to open the door, but Brent slammed the door shut and backed up against it, repeating his former assertion that defendant was not leaving until he bought Brent a pint of whiskey. Brent was in a serious rage by this time. Defendant opened the tool box on the side of his truck, got his gun and yelled for Viola who was coming off the porch. Viola McCall screamed as Brent, who was next to the porch, took a step forward and threw a rock. Defendant then raised his gun and pulled the trigger. After the shot, he put the rifle back in the tool box, ran to Otis Morgan\u2019s house nearby and asked Mr. Morgan to call the rescue squad and the sheriff\u2019s department. When Deputy Sheriff Fisher arrived defendant told him what had happened and got into the back seat of the deputy\u2019s car.\nDefendant testified that Brent McCall had attacked him and Viola McCall on two or three other occasions but said he did not intend to kill Brent when he fired the gun. He said it was \u201ca spur of the moment\u201d thing and that he acted in self-defense. He said he was not under the influence of alcohol but was afraid of Brent McCall, knowing what he could do and what he had done in the past.\nThe evidence discloses that Brent McCall was twenty-five years of age and defendant was fifty-four.\nThe jury convicted defendant of murder in the first degree and he was sentenced to death. Defendant appealed and assigns errors discussed in the opinion.\nStepp, Groce, Pi\u00f1ales & Cosgrove by W. Harley Stepp, Jr. and Edwin R. Groce, attorneys for defendant appellant.\nRufus L. Edmisten, Attorney General; Thomas B. Wood, Assistamt Attorney General, for the State of North Carolina." }, "file_name": "0570-01", "first_page_order": 590, "last_page_order": 598 }