State v. Duncan , 282 N.C. 412 ( 1972 )

193 S.E.2d 65 (1972) 282 N.C. 412

STATE of North Carolina
v.
Charles Douglas DUNCAN.

No. 70.

Supreme Court of North Carolina.

December 13, 1972.

Atty. Gen. Robert Morgan and Special Counsel Ralph Moody, Raleigh, for the State.

T. O. Stennett, Charlotte, for defendant appellant.

MOORE, Justice.

The bill of indictment in this case did not allege premeditation and deliberation. Defendant contends for this reason that his motion to quash should have been allowed. This contention is without merit. The bill of indictment followed the form prescribed by G.S. § 15-144, which provides in pertinent part:

". . . (I)t is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law. . . and any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for murder or manslaughter, as the case may be."

This Court has held many times that an indictment for murder need not allege deliberation and premeditation, and that an indictment in the form prescribed by the statute is sufficient. State v. Haynes, 276 N.C. 150, 156, 171 S.E.2d 435, 439 (1969); State v. Roman, 235 N.C. 627, 70 S.E.2d 857 (1952); State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613 (1949).

Defendant was charged in one bill of indictment with the murder of Martha Turner Duncan on 28 November 1971 and in another with a felonious assault upon Jack Sanders with a shotgun. The cases were consolidated for trial. Defendant assigns this as error. Both cases arose out of the same set of facts and circumstances on the same occasion. G. S. § 15-152 authorizes the consolidation of two or more indictments where the charges are for "two or more acts or transactions connected together." The assault on Sanders with a shotgun and the murder of Mrs. Duncan were so connected and tied together as to make one continuous criminal episode. The evidence of the whole affair is pertinent and necessary to establish the identity of defendant as the guilty party. The two charges were properly consolidated and tried together. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Arsad, 269 N.C. 184, 152 S.E.2d 99 (1967); State v. Bryant, 250 N.C. 113, 108 S.E.2d 128 (1959); State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931).

Defendant next contends that circumstantial evidence is not competent to prove premeditation and deliberation, and that the court erred in overruling his motion for judgment as of nonsuit on the charge of first degree murder. "Premeditation and deliberation are not usually susceptible of direct proof, and are therefore susceptible of proof by circumstances from which the facts sought to be proved may be inferred." State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969).

"Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: Want of provocation on the part of deceased. [Citations omitted.] The conduct of defendant before and after the killing. [Citations omitted.] Threats and declarations of defendant before and during the course of the occurrence giving rise to the death of the deceased. [Citations omitted.] The dealing of lethal blows after deceased has been felled and rendered helpless. [Citations omitted.]" State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961).

The rule as to nonsuit is stated by Justice Higgins in State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956), as follows:

"When a case comes here on exception to the refusal of the trial court to sustain the motion to dismiss, the rule applicable to this Court is the same as that applicable to the trial court. Taking the evidence in the light most favorable to the State, if the record here discloses substantial evidence of all material elements constituting the offense for which the accused was tried, then this court must affirm the trial court's ruling on the motion. The rule for this and for the trial court is the same whether the evidence is circumstantial or direct, or a combination of both." (Emphasis added.)

The evidence in the present case disclosed that defendant first shot his wife in the face from the door of his mobile home and then followed her several hundred yards and shot her at close range at least two times with a sawed-off shotgun. There is no evidence that the deceased had any weapon or at anytime offered any threat to defendant. The want of provocation, absence of any excuse or justification, coupled with the other evidence, permitted a legitimate inference of premeditation and deliberation and was sufficient to be submitted to the jury on the issue of murder in the first degree. State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970); State v. Faust, supra.

Defendant next contends that the court erred in allowing the witness Cleon C. Mauer to testify over defendant's objection as to shells and the gun which at the time had not been introduced in evidence. The sawed-off .410 gauge single-shot shotgun was identified by an officer as having been found near the body of the deceased soon after the shooting occurred. Three empty .410 gauge shotgun shells were also identified by this officer. One of these was found lying near the body, one was in the gun, and the third was found immediately inside the front door of the trailer. A partial box of loaded .410 gauge shotgun shells was also found in defendant's trailer. Mauer, a Firearms Identification Specialist at the Charlotte-Mecklenburg Crime Laboratory at Charlotte, testified that the three spent shotgun shells had been fired from this .410 gauge shotgun. The gun and shells were first identified. Then it was proper for Mauer to testify concerning them. Later in the trial the gun and shells were introduced into evidence. State v. Wilson, 280 N.C. 674, 187 S.E.2d 22 (1972); State v. Bass, 249 N.C. 209, 105 S.E.2d 645 (1958); State v. Macklin, 210 N.C. 496, 187 S.E. 785 (1936); Stansbury, North Carolina Evidence § 118 (2d Ed. 1963). This contention is without merit.

Defendant assigns as error the introduction of photographs of the body of the deceased taken at the scene of the shooting, contending that the pictures are highly inflammatory and prejudicial to defendant. One photograph apparently showed the body of the deceased with her internal organs exposed and lying on top of her stomach. The photographs were not brought forward in the record, but were properly authenticated at the time as portrayals of conditions observed and related by the witnesses who used the photographs to illustrate their testimony. "The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated.. . ." State v. Atkinson, 275 N.C. 288, 311, 167 S.E.2d 241, 255 (1969). Accord, State v. Frazier, supra; State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967); Stansbury, North Carolina Evidence § 34 (2d Ed. 1963). This assignment is overruled.

Defendant next contends that the court erred in letting the case go to the jury on the charge of first degree murder where there was ample evidence that defendant was drunk or intoxicated at the time of the shooting. One officer testified for the State that in his opinion the defendant was drunk, but further testified that defendant's voice was clear and that he was able to walk without any help. Another officer testified that he saw the defendant soon after the shooting and that in his opinion defendant was under the influence of some intoxicating liquor. He also testified that when he questioned the defendant: "He understood what I said to him and replied to that correctly. His speech was clear. I understood everything he said. It did not slur at all. I observed an odor of alcohol about his breath. . . . I observed the defendant out there. I talked to him. I watched him walk. He seemed to be a little excited."

With reference to voluntary intoxication as a defense to a charge of murder this Court has said:

"A specific intent to kill is an essential element of first degree murder. State v. Propst, 274 N.C. 62, 71, 161 S.E.2d 560. While voluntary drunkenness is not, per se, an excuse for a criminal act, State v. Propst, supra, it may be sufficient in degree to prevent and, therefore, disprove the existence of a specific intent such as the intent to kill. State v. Cureton, 218 N.C. 491, 494, 11 S.E.2d 469; State v. Murphy, 157 N.C. 614, 72 S.E. 1075. As stated by Justice Barnhill, later Chief Justice, in State v. Cureton, supra: ``No inference of the absence of deliberation and premeditation arises as a matter of law from intoxication; and mere intoxication cannot serve as an excuse for the offender. The influence of intoxication upon the question of existence of premeditation depends upon its degree and its effect upon the mind and passion. For it to constitute a defense it must appear that the defendant was not able, by reason of drunkenness, to think out beforehand what he intended to do and weigh it and understand the nature and consequence of his act.'" State v. Wilson, 280 N.C. 674, 680-681, 187 S.E.2d 22, 26 (1972).

The trial judge in the present case stated the evidence relating to defendant's intoxication and then instructed the jury:

". . . (I)n order to convict of Murder in the First Degree, the State must satisfy the Jury from the evidence and beyond a reasonable doubt that the defendant unlawfully killed Mrs. Duncan with malice and in addition must satisfy the Jury from the evidence beyond a reasonable doubt that he did so in execution of an actual, specific intent to kill, previously formed after premeditation and deliberation, as heretofore more fully explained to you, Members of the Jury. Now, the Court instructs you that where specific intent is an essential element of the crime, such an actual specific intent to kill, the fact of drunkenness or intoxication may negative the existence of such actual, specific intent.

* * * * * *

"Now, the Court instructs you that the mere fact . . . the defendant had been drinking or was under the influence of some intoxicant at the time of the alleged killing is insufficient. It must appear, Ladies and Gentlemen, that he was so drunk as to be mentally incapable of forming an actual, specific intent to kill or to premeditate or to deliberate the killing of Mrs. Duncan. The Court instructs you that if this defendant, Charles Douglas Duncan, at and prior to the time of the killing, was so drunk as to be mentally incapable of forming an actual, specific intent to kill, to premeditate or deliberate the killing of Mrs. Duncan, he would not be guilty of the crime of Murder in the First Degree, but would be guilty of Murder in the Second Degree or guilty of Manslaughter or not guilty of any crime at all, according as the Jury may find the facts, with reference to other phases and aspects of this case."

This charge properly presented to the jury the question arising upon the evidence with reference to the intoxication of the defendant and correctly stated the law applicable thereto. State v. Wilson, supra. This assignment of error is overruled.

Defendant in his brief argues that our statute on murder is unconstitutional and has been invalidated by the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This question was not raised in the trial court and is not based on any exception. Appellate courts will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court. State v. Grundler and State v. Jelly, 251 N.C. 177, 187, 111 S.E.2d 1, 8, cert. den. 362 U.S. 917, 80 S.Ct. 670, 4 L.Ed.2d 738 (1959); State v. Jones, 242 N.C. 563, 89 S.E.2d 129 (1955). However, this same contention has been considered by this Court in a number of recent cases and has been decided adversely to defendant's contention. In State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972), this Court said:

"The Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held that the imposition of the death penalty, under certain state statutes and in the application thereof, was unconstitutional. That decision did not affect the conviction but only the death sentence. State v. Westbrook, 281 N.C. 748, 191 S.E.2d 68 (1972); State v. Doss, 281 N.C. 751, 191 S.E.2d 70 (1972); State v. Chance, 281 N.C. 746, 191 S.E.2d 65 (1972); State v. Miller, 281 N.C. 740, 190 S.E.2d 841 (1972); State v. Hamby and Chandler, 281 N.C. 743, 191 S.E.2d 66 (1972)."

Furthermore, the Furman case is without significance when the jury returns a verdict recommending life imprisonment. In that situation the defendant has no standing to raise the constitutionality of the death penalty or of a statute because it provides for that punishment. State v. Bryant, Holloman and White, 282 N.C. 92, 191 S.E.2d 745 (1972); State v. Wright and Glenn, 282 N.C. 364, 192 S.E.2d 818 (1972). This contention is overruled.

Other assignments of error have been considered but found to be without merit.

Evidence of defendant's guilt is overwhelming. He was convicted in a trial free from error. The verdict and judgment of the trial court must therefore be upheld.

No error.