State v. Suddreth

DenNY, J. After verdict and before judgment was imposed, the defendant moved to set aside the verdict because Elijah Bentley, one of the jurors, had permitted Mrs. Mabel Crisp Whisnant, sister of the deceased, Horry Crisp, Jr., to ride in his car while the case was pending. The court made a thorough investigation of the matter and found as a fact that the juror did permit Mrs. Whisnant to ride in the back seat of his car with her husband, for a distance of some four miles on the afternoon of Thursday, 2 December, 1948, while the case was in progress; that Carl Gilbert sat on the front seat of the car with the juror, who drove the car, and that the ease was not discussed during the time Mrs. Whis-nant and her husband were in the car. The juror also stated upon oath that he did not know Mrs. Whisnant was a sister of the dead man. The court being of the opinion that the result of the case had not been affected by the association alleged and shown, declined to set aside the *242 verdict either as a matter of law or in its discretion. The defendant excepted. It is provided by statute, Gr.S. 9-14, that the judge “shall decide all questions as to the competency of jurors,” and his rulings thereon are final and “not subject to review on appeal unless accompanied by some imputed error of law,” S. v. DeGraffenreid, 224 N.C. 517, 13 S.E. 2d 523; S. v. Hill, 225 N.C. 74, 33 S.E. 2d 470; S. v. Davenport, 227 N.C. 475, 42 S.E. 2d 686. This exception presents no reviewable question of law and will not be sustained. The court charged the jury that “there is a presumption where a killing is done with a deadly weapon, that it is done with malice, and ... an unlawful killing with malice is murder in the second degree.” And the court further charged: “Stated another way, Gentlemen, the State does not have to prove anything more than a killing with a deadly weapon in this case.. If it does that beyond a reasonable doubt, then it has no further burden. The burden is then upon the defendant to reduce it by satisfying you of a lack of malice, or to absolve himself by satisfying you that the killing was done in self-defense.” Exceptions 11 and 12 are directed to the above portions of the charge. It is contended his Honor committed reversible error in omitting the word “intentional” in connection with the charge on the presumption raised by a killing with a deadly weapon. Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. And an intentional killing with a deadly weapon raises two presumptions: first, that the killing was unlawful; and second, that it was done with malice. S. v. Robinson, 188 N.C. 784, 125 S.E. 617. There are circumstances under which it would be error to charge that a killing with a deadly weapon raises the presumption that the killing was unlawful and that it was done with malice. S. v. Burrage, 223 N.C. 129, 25 S.E. 2d 393; S. v. Debnam, 222 N.C. 266, 22 S.E. 2d 562; S. v. Gregory, 203 N.C. 528, 166 S.E. 387. It must be noted, however, that his Honor instructed the jury that “the State does not have to prove anything more than a killing with a deadly weapon in this case.” The defendant had stated to numerous persons that he shot the deceased, he so testified on direct and cross-examination, but claimed he did' so in self-defense; and the case was tried on that theory. S. v. Davis, 223 N.C. 381, 26 S.E. 2d 869; S. v. Utley, 223 N.C. 39, 25 S.E. 2d 195. When one kills another with a deadly weapon, in the absence of evidence to the contrary, it will be presumed “that he did so intentionally, since all persons are presumed to intend the consequences of their acts.” S. v. Wallace, 203 N.C. 284, 165 S.E. 716. Therefore, upon the facts in this case the exceptions are feckless. *243 Tbe defendant also excepts and assigns as error the following portion of the charge: “The Court instructs you further, Gentlemen of the Jury, that if you find beyond a reasonable doubt that defendant shot and killed the deceased but find that at the time of so doing that the defendant was not actuated by malice towards the deceased but that he was acting hastily and without just cause, that he then inflicted the wound that caused the death of the deceased, then, Gentlemen of the jury, upon that finding, the defendant would be guilty of manslaughter.” The defendant contends this instruction took away from the jury the right to consider his plea of self-defense. This contention is untenable; for immediately after giving the above instruction, the court gave a full and proper charge on the defendant’s plea of self-defense. Likewise, the defendant assigns as error the following excerpt from the charge: “If you find, Gentlemen of the Jury, and you are satisfied that the defendant acted with malice in the matter, and that it was not necessary for him to shoot and kill the deceased, and it was not apparently necessary, but that he did it in the heat of passion so to speak, then, Gentlemen of the Jury, the defendant would be guilty of manslaughter, and it would he your duty to render a verdict accordingly.” Here the court charged the jury “if . . . you are satisfied that the defendant acted with malice,” etc., instead of charging them if you are satisfied beyond a reasonable doubt, etc. The complaint here is to the measure or quantum of proof required for conviction. Standing alone and detached from the remainder of the charge the exception would be well taken. But in each of the five paragraphs of the charge immediately preceding the one complained of, instruction as to the burden of proof was correctly given. And the instructions given related to murder in the second degree, manslaughter and the defendant’s plea of self-defense. Moreover, this portion of the charge was primarily directed to a mitigating circumstance which if found to the satisfaction of the jury, would rebut or displace the presumption of malice and reduce the crime to manslaughter. S. v. Baldwin, 152 N.C. 822, 68 S.E. 148; S. v. Kennedy, 169 N.C. 288, 84 S.E. 515; S. v. Terrell, 212 N.C. 145, 193 S.E. 161. Consequently, when the charge is considered contextually, the lack of exactitude in the instruction complained of is insufficient to show reversible error. Moreover, all the exceptions to the charge, except the last two discussed herein, 'are directed to the court’s charge on murder in the second degree and not manslaughter; and since the defendant was convicted of manslaughter and not murder in the second degree, no error has been shown of sufficient merit to warrant a new trial. We have carefully examined the remaining assignments of error and ' they are without merit. *244 It would seem tbe defendant’s own testimony was sufficient to warrant tbe verdict rendered below. S. v. Marshall, 208 N.C. 127, 179 S.E. 427. In tbe trial below, we find No error.