State v. Ferrell , 300 N.C. 157 ( 1980 )

265 S.E.2d 210 (1980) 300 N.C. 157

STATE of North Carolina
v.
Joseph FERRELL.

No. 66.

Supreme Court of North Carolina.

May 6, 1980.

Rufus L. Edmisten, Atty. Gen. by Elisha H. Bunting, Jr., Asst. Atty. Gen., Raleigh, for the State.

H. Bruce Hulse, Jr., Goldsboro, for defendant.

BRANCH, Chief Justice.

The threshold question presented for review in this case is whether a sentence of imprisonment for ten years to life is a sentence of "imprisonment for life" within the meaning of G.S. 7A-27(a) so as to create a direct appeal of right to this Court from the superior court. In dismissing the appeal for lack of jurisdiction, the Court of Appeals reasoned that a sentence of imprisonment of ten years to life was essentially a life sentence and therefore appeal lay directly to this Court from the trial court. We disagree.

G.S. 7A-27 governs appeals of right from the trial division and provides in pertinent part as follows:

(a) From a judgment of a superior court which includes a sentence of death or imprisonment for life, unless the judgment was based on a plea of guilty or nolo contendere, appeal lies of right directly to the Supreme Court.

The primary function of a court in construing a statute is to ascertain the intent of the legislature. State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975). In ascertaining this intent, a court looks to the language and spirit of the statute and what it sought to accomplish. Stevenson v. Durham, 281 N.C. 300, 188 S.E.2d 281 (1972). It is also relevant to look to the history of the legislation and the circumstances surrounding its enactment. Sale v. Johnson, 258 N.C. 749, 129 S.E.2d 465 (1963).

In 1967 the legislature created the present appellate division, consisting of the Supreme Court and the Court of Appeals. 1967 N.C.Sess.Laws c. 108, s. 1. Prior to that time, the appellate division consisted solely of the Supreme Court. 1965 N.C. Sess.Laws c. 310, s. 1. According to the Report of the Courts Commission, a primary goal of creating two branches within the appellate division was to alleviate the heavy case load which had burdened the Supreme Court until that time. Report of the Courts Commission 14 (1967). The Commission recommended to the legislature that every case, civil and criminal, should be appealable initially to the Court of Appeals. The Commission, however, noted that there should be an exception to the "basic arrangement that all cases be appealed directly to the Court of Appeals in the first instance," and that the exception would be in "cases in which a sentence of death or life is imposed." As the authors of the report pointed out, "[i]t is important to have as a part of the organic law of the State the absolute right of a person under these ultimate sentences to appeal directly and in the first instance to the Supreme Court." Id. at 17. (Emphasis added.)

While the Report of the Courts Commission does not address the specific problem which is before us, we think it is abundantly clear that the Commission intended to recommend to the legislature that direct appellate review by this Court be confined to a "strictly limited category of ``important' cases. . . ." Id. at 4^[1]. We need not dwell on the reasons why cases involving sentences of death and of life imprisonment constitute "important cases." Those reasons are self-evident. Suffice it to say that the sentence imposed in this case is for imprisonment for a term of ten years to life and is thus an indeterminate sentence. See People v. Rivas, 85 Cal. App. 2d 540, 193 P.2d 151 (1948). In light of what we perceive to be the purpose of G.S. 7A-27 in permitting only a limited number of direct appeals to this Court from the trial division, we do not think that the term "imprisonment for life" encompasses a sentence which is indeterminate. An indeterminate sentence, which, as here, merely states life imprisonment as a maximum, simply does not rise to the level of importance or seriousness which we think the drafters of G.S. 7A-27(a) intended for cases warranting a special direct appeal to this Court from the trial division.

We therefore hold that the term "imprisonment for life" as it is used in G.S. 7A-27(a) means only a determinate life sentence and does not include an indeterminate sentence merely because the stated maximum is a life term. See People v. Rivas, supra; Maddox v. People, 178 Colo. 366, 497 P.2d 1263 (1972); Jaramillo v. District Court, 173 Colo. 459, 480 P.2d 841 (1971). But see State ex rel. Corbin v. Court of Appeals, 103 Ariz. 315, 441 P.2d 544 (1968). Thus, since defendant was not sentenced to "imprisonment for life" as that term is used in G.S. 7A-27(a), his appeal was properly within the jurisdiction of the Court of Appeals.

Defendant assigns as error the following portion of the trial court's charge to the jury:

So with regard to this charge of Second Degree Murder. If the State of North Carolina has satisfied you from the evidence and beyond a reasonable doubt that on or about the 19th day of July, 1978, Joseph Ferrell choked Leslie William Royals with his hands; that he did so without malice and without justification or excuse and thereby proximately caused the death of Leslie William Royals; it would be your duty to return a verdict of guilty of Second Degree Murder. (Emphasis added.)

Defendant contends that the instruction is contrary to the law of North Carolina and that he is entitled to a new trial.

The State contends that the trial judge instructed correctly on the requirements of second-degree murder just prior to the erroneous portion set out above. Thus, the State maintains that the charge when read as a whole is correct, relying on the case of State v. Cole, 280 N.C. 398, 185 S.E.2d 833 (1972). In Cole, the trial judge defined second-degree murder as "the unlawful killing of a human being without (emphasis added) malice . . . ." Id. at 402, 185 S.E.2d at 836. This Court found no error but did so specifically for the reason that the trial court corrected its error and "immediately followed the erroneous instruction with the statement malice is a necessary element of murder in the second degree." Id. at 403, 185 S.E.2d at 836. The Court noted explicitly that, if the error had not been corrected, a new trial would have been required.

Unlike Cole, the error in the court's instruction in this case went uncorrected. Furthermore, the error was accentuated by the fact that it was in the judge's final mandate to the jury. Defendant is therefore entitled to a new trial.

Defendant also assigns as error the failure of the judge to instruct on the lesser included offense of voluntary manslaughter and on self-defense. The State contends that there was insufficient evidence of either to warrant an instruction to the jury.

It is the duty of the trial court to instruct on all substantial features of the case. State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974). If there is evidence from which the jury could find that the defendant committed a lesser included offense, the judge must charge on that lesser offense. State v. Ford, 297 N.C. 144, 254 S.E.2d 14 (1979). Likewise, where there is competent evidence from which the jury could find that defendant acted in self-defense, the court must charge on that defense, even though there may be evidence to the contrary. State v. Dooley, supra.

In the case at bar, at least two of defendant's statements, offered into evidence by the State, indicated that he had "had a spell." In his third statement, he said that the deceased had slapped at him and had knocked his glasses off and that the two had argued just prior to the killing.

The unlawful killing of a human being under the influence of passion upon sudden provocation is voluntary manslaughter. State v. Wynn, 278 N.C. 513, 180 S.E.2d 135 (1971). There is evidence in this case from which a jury could find that defendant lacked the malice necessary to sustain a second-degree murder conviction because he acted in the heat of passion upon sudden provocation.

Further, the evidence that deceased had a box cutter in his hand and struck the first blow was sufficient to permit the jury to reasonably infer that defendant acted in self-defense. See State v. Marsh, 293 N.C. 353, 237 S.E.2d 745 (1977). Thus, defendant was entitled under the facts of this case to have the jury determine, under proper instructions, whether the force he used was reasonable and constituted a complete defense, or whether the force was unreasonable so as to reduce the crime to voluntary manslaughter. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971).

The trial court committed error prejudicial to defendant in failing to instruct on the lesser included offense of manslaughter and on the defense of self-defense. For the reasons set forth in this opinion, we hold that defendant is entitled to a new trial.

Since we are remanding the case for a new trial, we do not deem it necessary to address defendant's remaining assignments of error, inasmuch as the matters which gave rise to them probably will not recur on retrial.

The dismissal of the cause by the Court of Appeals is reversed, and for errors in the trial, the cause is remanded to the Wayne County Superior Court for a new trial.

REVERSED and REMANDED.

COPELAND and CARLTON, JJ., took no part in the decision of this case.

NOTES

[1] The 1967 legislation creating the appellate division meticulously follows the recommendation of the Courts Commission.