#### STATE v. JAMES HENDERSON.

(Filed 16 June, 1939.)

1. Jury § 8: Constitutional Daw § 37: Criminal Daw § 81a — Evidence held to support finding that names of colored citizens were not excluded from jury box.

Defendant, a Negro, filed a plea in abatement before the selection of a jury on the ground that qualified members of his race had been excluded from the jury box. The trial court found upon supporting evidence that the names of qualified members of the Negro race had been placed in the box and that the jurors were properly selected therefrom by a child under ten years of age, and overruled the plea in abatement. *Held:*The findings of the trial court are conclusive upon appeal and the ruling of the court will not be disturbed, there being no evidence of any abuse of discretion.

3. Criminal Daw §§ 44, 81a — A motion for continuance is addressed to discretion of the trial court.

A motion for continuance is addressed to the discretion of the trial court, and where it appears that counsel appointed were given the names of the State’s witnesses, that defendant confessed the commission of the crime, and that he presented numerous witnesses who testified in support of the matter asserted by him as a defense, defendant’s exception to the refusal of the court to grant a continuance cannot be sustained, there being no indication of any abuse of discretion.

8. Criminal Daw § 77c—

Where the charge of the court is not in the record, it will be presumed that the court fairly and correctly charged every phase of the law applicable to the evidence.

*100Appeal by defendant from *Burgwyn, Special Judge,*and a jury, at November Term, 1938, of New HaNOveb.

No error.

The defendant was tried on a bill of indictment charging him with murder, on 6 November, 1938, of Mrs. Stella Hobbs. The jury rendered a verdict of murder in the first degree. The court below pronounced judgment of death by asphyxiation.

Mrs. Stella Hobbs, 43 years of age, whose husband had been dead for about one year, was last seen by her daughter on Sunday morning, 6 November, between 4:30 and 5 o’clock, when the daughter had gone back to sleep while her mother was talking to her from her bedroom. Her body was found early Sunday morning about 3 feet from the back of her overturned automobile. No glass in the automobile was broken. It was lying on its right side, but the top of the automobile looked as if it had been torn or cut, or pulled loose. The hole in the top was large enough to get a body through. The head was lying in a pool of blood and there were two wounds on the right side of the head above the ear about the size of a quarter. The skull was knocked in and this brain wound was sufficient to have caused death. The body was covered with bruises, particularly around the face and eyes. A further examination that afternoon showed evidence of recent intercourse. The body was in such a position that the deceased could not have been thrown from the car, and there were no tracks of her own shoes, nor anything to show how she got there.

The defendant, a 20-year-old Negro, about six feet three inches tall, weighing 190 pounds, was seen running from the scene of the accident early Sunday morning. His shoes fit the tracks leading from the car. A lug wrench was found in the car with some blood and hair on the socket end, the hair being the same as the deceased’s.

The defendant made two statements to the police. The record shows that these statements were made voluntarily and without compulsion. The first statement was made on Monday, and the defendant stated that Mrs. Hobbs wanted him to buy some whiskey for her and that he finally got into the car and that she drove so recklessly that they turned over. He then stated that he put his feet on the seat and pushed his head and shoulders through the top but did not help her out. He ran from the scene of the accident and stated that he was afraid to report it. The defendant stated that she was getting out of the car when he ran off, *but*later, in the same statement, he says: “I don’t believe she regained consciousness after the car turned over.”

The second statement was made to the police on Tuesday. The defendant again stated that Mrs. Hobbs tried to get him to buy some whiskey for her and that finally he got in the car and, at her direction, drove, although he had no experience in driving an automobile. He *101admitted tbe intercourse and stated tbat tbe accident happened while be was attempting to turn around. He stated tbat be pulled Mrs. Hobbs through tbe bole in tbe top of tbe car, and tbat she was mad and threatened him and tbat be struck her with bis fist and bit her with a lug wrench and then ran.

Tbe defendant went on tbe stand in bis own behalf. According to this testimony, Mrs. Hobbs was drunk, and tbe defendant himself was so drunk tbat be didn’t know what be was doing, although bis testimony was inconsistent on this point. There is considerable confusion in bis attempts to deny tbe statements made to tbe police. Consider tbe following testimony in regard to bis second statement, admitting tbat be struck tbe deceased with tbe lug wrench.

“They said they bad my fingerprints on tbe wrench, and if they bad, I must have bad my band on it, and if I was tbe only one tbat touched tbe wrench I must have bit her. I only made tbe statement about striking Mrs. Hobbs from tbe suggestions made me by tbe officers.”

“Tbe officers explained she was bit and I said I must have did it. I didn’t deny bitting her and I still don’t.”

C. David Jones, sheriff, recalled, testified: “On Monday of this week I bad a conversation with tbe defendant relative to these two statements. He told me tbe first statement be made on Sunday night was not true, or tbat tbe statement be made on Monday rather, was not true, but tbe one be made on Tuesday was true, but for one thing tbat be wanted to get straight; tbat be wanted to tell tbe truth about tbe whole thing, and didn’t want to leave a blemish, or anything, on Mrs. Hobbs’ character, because be bad known her and bad nothing against her. He said in tbe presence of bis mother on Monday night, Mr. Fales, Mr. Thompson and myself tbat there was one point be wanted to clear up in bis second statement, which bad been made on Tuesday, tbe 8th of November, and tbat was tbat Mrs. Hobbs was a good woman, and bad a boy and girl tbat were nice children, and be didn’t want to leave tbe blemish against tbe children, and tbat Mrs. Hobbs didn’t know anything about the intercourse; that she didn’t give her permission, and I asked the question, ' J ames, what caused you to do that; what caused you to do what you did and to kill Mrs. Stella?’ and he said, ‘I don’t know, sir.’ I said, ‘Were you drunk?’ He said, ‘I was drinking.’ I said, 'Was it the animal passion that got the best of you?’ and he said, 'It was both.’ That is about the sum and substance of what was said.”

The evidence of the State was that the deceased, Mrs. Stella Hobbs, was 43 years old and was the widow of J. T. Hobbs, who died 3 October, 1937. A colored woman, Janie Williams, worked for Mrs. Hobbs whenever she went for her. The deceased would usually leave early on Sundays to go for Janie Williams and would travel in her car. The *102deceased was at ber *home*something like a quarter to five o’clock on Sunday morning, 6 November, 1938, and was found dead about 6:30 o’clock tbat morning. Sbe bad gone in tbe direction of Janie Williams’ borne in ber car.

Tbe confession of defendant was coi’roborated in every respect. Tbe State’s evidence was to tbe effect tbat tbe deceased was raped and then murdered by defendant. Tbat tbe part of defendant’s confession tbat sbe consented to tbe intercourse and ber drinking at tbe time was untrue. Tbe defendant lived about a block from *the*dead woman. Tbe confession was corroborated in all material respects — tbe fastness of tbe car, be was seen running from tbe scene of tbe crime and told witness Elvin Lee: “And I said wbat are you doing down bere, and be said tending to some business, and be said don’t tell any damn body you saw me.”

As to tbe identity of tbe footprints, W. D. Thompson, witness for tbe State, testified, in part: “His shoe fitted tbe track as perfect as it was possible to fit it. He later admitted to me in tbe presence of other officers tbat the track I'fitted bis shoe in — tbe two tracks — were made by him.”

Tbe defendant testified in part: “Tbe last thing I remember during tbe drive was when tbe car turned over. It turned over one way or tbe other; I don’t remember which way it turned over, but after I managed to get out of tbe car, I taken ber by my ownself — I must have helped Mrs. Hobbs out of the car. I don’t know wbat I did, but I must have, and after tbat I don’t know anything tbat happened. ... I was driving tbe car when it turned into Thirteenth Street, and Mrs. Hobbs was unable to drive herself. Sbe was absolutely drunk. I don’t think sbe knew a thing. ... I don’t recall saying anything to my mother on Monday night. I said several things to ber, and asked bow sbe was. I told ber in case they found me guilty, which I am not, and was condemned to die, I told ber not to bring my body home. Tbat is all I told ber. I did say I didn’t want to leave a stain on tbe children of Mrs. Hobbs. I said I wanted to say I didn’t have an intercourse with ber with ber consent. If I bad it, it bad to be without ber will; sbe would never have given ber consent. These officers said there were bruises on ber jaw, and tbat sbe was bit with my fist, and I told them my being the *only*man with ber, I must have bit ber. I don’t know what’s in tbat paper about bitting ber on tbe jaw. I know wbat I said as far as I am able to call back. Tbe officers did not know about my confession. Tbe officers explained sbe was bit and I said I must have did it. I didn’t deny bitting ber, and I still don’t. I don’t know whether sbe was standing, stooping or sitting. I didn’t have tbe wrench borne with me when I got borne; I didn’t have it in tbe bed with me. *103I don’t know wbat I did with it. I don’t recall especially running. I don’t know whether I fell down.”

It was in evidence that defendant had been arrested for vagrancy and his fingerprints taken. The defendant introduced several witnesses as to his drinking pretty heavily Saturday night; playing pool and when he missed a ball would curse, etc. “He was drinking, I would not say he was what you call real drunk.” Thos. Betts, witness for defendant, testified: “I know James Henderson. I saw him Sunday morning at my home. ... I could not say he was drunk but he was under the influence; a drunk man can’t walk. That was five minutes to six Sunday morning. It was not dark at that time.”

Upon the judgment of death being pronounced, on the verdict of guilty of murder in the first degree, the defendant made several exceptions and assignments of error and appealed to the Supreme Court. They and the necessary facts appearing in the record will be considered in the opinion.

*Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.*

*Alan A. Marshall and W. F. Jones for defendant.*

Clarkson, J.

The exceptions and assignments of error are as follows: (1) The defendant, before the selection of a jury, filed in writing a plea in abatement based on the exclusion of qualified members of the Negro race from the jury box. We think there is no error in the denial of the plea on this record. (2) The denial of defendant’s plea for a continuance. In this we can see no error.

The court below on the plea in abatement being filed by defendant, made the following entry in the record: “This cause coming on to be heard before the undersigned judge, the following facts are found: That the defendant was indicted by the grand jury of New Hanover County of murder in the first degree, true bill for same being returned by the grand jury on the morning of the 14th of November, and the court being apprised of the fact that the defendant was without counsel, and without means to provide private counsel for his defense, and being informed by the solicitor for the State that he would ask for a verdict of guilty of murder in the first degree, thereupon, appointed as counsel for the defendant two reputable lawyers of the New Hanover County Bar, to wit: Alan A. Marshall and W. F. Jones, and informed them of their appointment, the same being accepted. The court further finds that at 2:30 p.m., on the 14th day of November, 1938, the defendant was arraigned in open court, and for his plea to the bill of indictment entered a plea of not guilty, which plea was made in his own proper *104person, and by bis attorneys, eacb standing by bis side. Tbe court further finds as a fact tbat tbe cause was then set for trial at 2 :30 tbe .following day, Tuesday tbe 15tb, and upon tbe agreement of counsel for tbe State and for tbe defense tbat seventy-five names would be sufficient to constitute a special venire to serve as jurors in tbis case in addition to tbe regular panel, if sucli regular panel should become exhausted, and thereupon a child under tbe age of ten years, to wit, Horace Thomas Chinnis, drew tbe names from tbe jury box of tbe county in accordance with tbe law, in tbe presence of tbe defendant and of bis counsel; tbat at tbe commencement of tbe afternoon session, 2:30 p.m., November 15, 1938, tbe defendant’s counsel filed a plea in abatement, which plea in abatement is supported by an affidavit signed by Thomas Woody. Tbe court further finds as a fact tbat tbe affidavit supporting tbe plea of abatement does not disclose to tbe court tbat there are not now in tbe jury box of New Hanover County tbe names of colored citizens of tbe county, but, to tbe contrary, shows tbat two years ago a number of names of tbe Negro race were placed in such jury box, and tbe court finds tbat tbe names of members of tbe Negro race of New Hanover County have been, within the last two years, placed in tbe jury box of New Hanover County. Tbe motion of plea in abatement is not allowed by tbe court, in its discretion, and tbe same is hereby overruled.”

In *S. v. Walls,*211 N. C., 487 (494), speaking to tbe subject, it is said: “Tbe exclusion of all persons of tbe Negro race from a grand jury, which finds an indictment against a Negro, where they are excluded solely because of their race or color, denies him tbe equal protection of tbe laws in violation of tbe Constitution of N. C., and tbe United States. *S. v. Peoples,*131 N. C., 784.” *Strauder v. W. Va.,*100 U. S., 303, 25 L. Ed., 664; *Neal v. Del.,*103 U. S., 370, 26 L. Ed., 567; *Norris v. Ala.,*294 U. S., 587, 55 S. Ct., 578 (1933) (second Scottsboro case).

There was some evidence to sustain tbe above finding of fact made by tbe court below. It has been generally held by tbis court tbat tbe findings of fact are conclusive on appeal in tbe absence of gross abuse. *S. v. Walls, supra,*p. 494. The *Walls case, supra,*on appeal to tbe U. S. Supreme Court, was dismissed, 302 U. S., 635, 58 S. Ct., 18.

In *Thomas v. Texas,*212 U. S., 278, 53 L. Ed., 512, it is said: “Whether such discrimination was practiced in tbis case was a question of fact and tbe determination of tbat question adversely to plaintiff in error by tbe trial court and by tbe court of criminal appeals was decisive so far as tbis Court is concerlred, unless it could be held tbat tbis decision constituted such abuse as amounted to an infraction of tbe Federal Constitution.”

Tbe following motion was made by defendant on 15 November, 1938: “Now comes tbe defendant, James Henderson, charged with tbe crime *105of murder in the first degree, through his counsel, Alan A. Marshall and W. F. Jones, and respectfully moves this honorable court that the trial of this cause be continued, for that: The defendant was apprehended and placed in custody on or about the 8th day of November, 1938, and since that time has been held incommunicado by the law enforcement officers of the city of Wilmington and New Hanover County and the State of North Carolina, and that shortly after the 8th day of November, 1938, the said defendant was removed to the State Prison in Ealeigh, North Carolina, and was confined there until the 14th day of November, at which time he was returned to the city of Wilmington, North Carolina, arriving in Wilmington, North Carolina,' in the custody of several officers at or about noon on the 14th day of November, 1938, and that about 10:30 a.m., on the 14th day of November, 1938, the Honorable W. H. S. Burgwyn, judge presiding, informed Alan A. Marshall that he was going to appoint the said Marshall to represent the said defendant and requested him to be present at 2:30 on that day, at which time the defendant would be arraigned, whereupon the said Alan A. Marshall prayed the court to appoint another attorney to assist him in the presentation of the defense of the said James Henderson, which prayer was granted by the court; that at or about 2:30 on the 14th day of November, Alan A. Marshall and W. F. Jones presented themselves before the court, and for the first time saw the defendant, James Henderson, in court. The defendant was arraigned and pleaded ‘Not guilty/ whereupon the court instructed the court reporter to let the records show that Alan A. Marshall and W. F. Jones were thereby appointed to represent the defendant and as counsel for the defendant have not had sufficient time in which to discuss the case with the client to investigate the facts and the law applicable to the cause, and, in brief, have not, in their opinion, had sufficient time in which to properly prepare the case for the defendant and present his defense in an adequate way as the said defendant is entitled to by law.”

“The court finds as a fact that immediately after the arraignment of the defendant the court requested the solicitor for the State to give to the counsel for the defendant the names of each and every witness for the State whom they might have a desire to examine. Whereupon, the solicitor did give to the counsel for the defendant the names of the witnesses, and other evidence in writing which he proposes to introduce against the defendant, and the court now asks the defendant’s counsel if there is anyone in the State of North Carolina they desire as a witness in this case. (Mr. Marshall) : ‘So far as we know there is no specific witness, or no specific information. Therein lies the point of our motion for continuance. We feel, and respectfully submit to your Honor, that we have not had time (barely twenty-four hours as a matter *106of fact) to talk, first to this man; to talk to the witnesses whom he has given us, and to delve into the law applicable to the case, and attempt to present his case in an adequate way. Lack of time for the disclosure of information materially goes to-the soul of our motion.’ (Court:) Upon the completion of the selection of the jury tonight, if you desire further time, I will continue the trial of the case until morning for you. . . . Let the record show that after the jury has been selected, sworn and impaneled, counsel for the defendant signified their readiness to proceed.”

“This Court has wisely left the matter in the sound discretion of the court below unless there is ‘palpable abuse’ or ‘gross abuse’ of this discretion. This Court in a most thorough opinion, citing a wealth of authorities, said in *S. v. Sauls,*190 N. C., 810 (813) : ‘It was subsequently held in a number of decisions that the refusal to continue a case rests in the judge’s discretion upon'matters of fact which this Court has no power to review. ... In other cases it is held that while the exercise of discretion must be judicial and not arbitrary it is not subject to review unless “the circumstances prove beyond doubt hardship and injustice,” . . . “palpable abuse” ... or “gross abuse” . . .’ *S. v. Rhodes,*202 N. C., 101 (102-3); *S. v. Lea,*203 N. C., 13 (24); *S. v. Garner,*203 N. C., 361; *S. v. Banks,*204 N. C., 233 (231); *S. v. Whitfield,*206 N. C., 696 (698).” S. *v. Godwin, ante,*49.

The record discloses that the court below was right in its discretion in refusing a continuance. The defendant confessed to the qrime and had numerous witnesses to testify as to his drinking that night. If the case had been continued it would not have advantaged defendant. The charge of the court below is not in the record and the presumption of law is that the court fairly charged every phase of the law applicable to the facts, including that of intoxication affecting defendant’s capacity to form sufficient intent to kill the deceased with premeditation and deliberation with malice aforethought. The defendant in his testimony said, “The officers explained she was hit and I said, ‘I must have did it.’ I didn’t deny hitting her and I still don’t.” The facts in the record against the defendant are sordid and repulsive — all the evidence indicates that while drinking defendant raped the deceased and brutally murdered her with a lug wrench, wounds were on her head and elsewhere on her person. If the jury had been composed entirely of persons of the Negro race, from the evidence the verdict could not have been otherwise.

On this record there is no prejudicial or reversible error.

No error.