State v. Wilson , 280 N.C. 674 ( 1972 )

187 S.E.2d 22 (1972) 280 N.C. 674

STATE of North Carolina
v.
Zollie WILSON, Jr.

No. 1.

Supreme Court of North Carolina

March 15, 1972.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Eugene Hafer and Staff Atty. Donald A. Davis, Raleigh, for the State.

Clayton & Ballance by Frank W. Ballance, Jr., Warrenton, for defendant.

LAKE, Justice.

The defendant assigns as error: (1) The admission in evidence, over objection, of the shotgun, he contending it had not been identified as the weapon used in the shooting of Alston; (2) the failure of the State to prove the cause of death and the admission of alleged hearsay evidence as to the fact of death; and (3) the failure of the court to instruct the jury, as requested by the defendant, that "when a person commits an act without being conscious thereof, such act is not a crime even though if committed by a conscious person it would be a crime." There is no merit in any of these assignments of error.

Other exceptions and assignments not brought forward into the brief are deemed abandoned. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526; State v. Barber, 270 N.C. 222, 154 S.E.2d 104; Branch v. State, 269 N.C. 642, 153 S.E.2d 343. Rule 28, Rules of Practice in the Supreme Court. We have, nevertheless, reviewed the entire record before us and find no merit in the assignments of error so abandoned.

As to the shotgun introduced in evidence, the State's witness William Southerland testified that, after leaving the defendant in Henderson following the shooting, Southerland threw the gun out of the car into a ditch and thereafter told Deputy Capps where it was. Deputy Capps testified that, upon receipt of this information, he went to the place described by Southerland, found a shotgun about 20 feet from the other side of the ditch, he delivered the gun so found to the State Bureau of Investigation, it was received back from the Bureau by another deputy and, while it had no identifying feature known to him, it was his opinion that the gun offered in evidence was the same gun so found by him.

Weapons may be admitted in evidence where there is evidence tending to show that they were used in the commission of a crime. State v. Sneeden, 274 N. C. 498, 502, 164 S.E.2d 190; Stansbury, North Carolina Evidence, 2d Ed, § 118. We deem the testimony of witnesses Southerland and Capps, above mentioned, sufficient to identify the gun so offered in evidence as the one used in the shooting of Alston, but if it were not, so as to make the admission of this weapon in evidence an error, it was clearly harmless in view of the testimony of five eyewitnesses that the defendant shot Alston with a shotgun. While relevant, the identification and the introduction in evidence of the weapon used is not essential to a conviction of murder. In State v. Macklin, 210 N.C. 496, 187 S.E. 785, a shotgun found in the defendant's room was held properly admitted in evidence, it having been testified that it was "like the one" with which the defendant had been seen on the night the deceased was shot.

The contention that the court erred in denying the motion for arrest of judgment because there was no competent evidence of the death of Alston, or as to the cause of such death, is without merit. The State's witness Hargrove testified that he picked Alston up and carried him to the hospital after the shooting and that "when we got to the hospital he was dead." The record shows that at this point the defendant objected and the court overruled the objection. The record does not show the question in response to which the witness so answered or that the objection was interposed to such question. An objection to an answer responsive to a question comes too late after the witness has so answered the question. Johnson v. Lamb, 273 N.C. 701, 709, 161 S.E.2d 131; Brown v. Hillsboro, 185 N.C. 368, 117 S.E. 41.

On cross-examination, this witness testified: "When I arrived at the hospital he was dead. The doctor said he was dead." Thereupon, in response to questions by the court, not set forth in the record on appeal, the witness testified: "I didn't examine him. When we got to the hospital, I went in and got some stretchers, we got him out of the car and laid him on it and toted him in. He wasn't moving no more than his arm was moving by me picking him up and laying him down." The defendant's motion to strike the answer was overruled. The question not being shown in the record before us, we cannot assume that the answers of the witness both to the question by the defendant's counsel and to the question by the court were not responsive. The witness was obviously testifying on the basis of his own observation of Alston. The statement of the doctor was apparently recounted by the witness as corroboration of his own observation and testimony.

Deputy Sheriff Capps testified: "I went in the back room [of the hospital] and saw Charlie Wilbert Alston. He was dead at the time I saw him." This witness then identified the photograph of the body taken by him, which photograph was introduced in evidence and used by the witness to illustrate his testimony as to the location of the wound on the body. There was no error in the admission of the photograph in evidence for this purpose. The record not disclosing the question propounded to the witness Capps, it must be assumed that his testimony was responsive thereto. Consequently, there being no objection to the question, the motion to strike the answer was properly overruled.

The witness William Southerland testified that when he and the defendant arrived at the defendant's home following the shooting, the defendant said to Gertrude Perry he had "killed" Alston and instructed her to "come on" with the defendant and Southerland.

Observation of a deceased person, or of a dead animal, is not so rare an occurrence as to render a non-expert incompetent to testify as to the fact of death in a particular instance. While it is the usual and better practice in a prosecution for homicide to offer medical testimony as to both the fact of death and the cause of it, even the cause of death may be established by non-expert testimony when the facts in evidence are such that every person of average intelligence would know from his own experience or knowledge that an observed wound was mortal in character. State v. Howard, 274 N.C. 186, 198, 162 S.E.2d 495; State v. Minton, 234 N.C. 716, 721, 68 S.E.2d 844. The State's evidence is ample to show that Alston was shot in the chest or upper abdomen with a shotgun at close range, he fell immediately, blood flowed from the wound and, though taken immediately to the hospital, he was dead on arrival. There was ample evidence to support a finding both of the fact of death and that the cause of death was the shooting of the deceased by the defendant.

Neither the defendant nor any of his witnesses attempted to deny that the defendant shot Alston, that Alston was dead or that the shooting by the defendant was the cause of his death. Neither the defendant nor any of his witnesses attempted to establish any justification for the shooting of Alston. The defendant's testimony was designed solely to convince the jury that, by reason of his voluntary intoxication, he did not "remember" the shooting or anything about it.

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."

The learned trial judge instructed the jury:

"There is evidence in this case which tends to show that the defendant was intoxicated at the time of the acts alleged in this case. Generally, voluntary intoxication is not a legal excuse for crime. However, if you find that the defendant was intoxicated, you should consider whether this condition affected his ability to formulate the specific intent which is required for conviction of first degree murder.

"In order for you to find the defendant guilty of first degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an actual, specific intent to kill formed after premeditation and deliberation.

"If as a result of intoxication the defendant did not have the specific intent to kill the deceased, Charlie Alston formed after premeditation and deliberation, he is not guilty of first degree murder.

"Therefore, I charge you that if upon considering the evidence with respect to the defendant's intoxication you have a reasonable doubt as to whether the defendant formulated the specific intent required for a conviction of first degree murder, you will not return a verdict of first degree murder. You will then consider whether or not he would be guilty of second degree murder."

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.

The court having so instructed the jury, the defendant was not entitled to the further instruction requested by him: "When a person commits an act without being conscious thereof, such act is not a crime even though if committed by a conscious person it would be a crime." The present record does not contain evidence of complete unconsciousness such as was deemed to be indicated by evidence of the defendant in State v. Mercer, 275 N.C. 108, 165 S.E.2d 328.

No error.