State v. Dooley ( 1974 )

203 S.E.2d 815 (1974) 285 N.C. 158

STATE of North Carolina
v.
William J. "Bill" DOOLEY.

No. 57.

Supreme Court of North Carolina.

April 10, 1974.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. James F. Bullock, and Associate Atty. E. Thomas Maddox, Jr., Raleigh, for the State.

Harris & Bumgardner by Don H. Bumgardner, Gastonia, for defendant appellant.

MOORE, Justice.

Defendant brings forward fourteen assignments of error designated as Exceptions Nos. I to XIV. We first consider Exception No. XIV, which defendant states in his brief as follows:

"The defendant objects and excepts in the record to the failure of the court to charge the jury in his mandates to the jury the following proposition: `Or, if you are satisfied that the defendant acted in self-defense, then it will be your duty to return a verdict of not guilty.'"

G.S. 1-180 requires that the trial judge fully instruct the jury as to the law based on the evidence in the case. It is the duty of the court to charge the jury on all substantial features of the case arising on the evidence without special request therefor. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965); State v. Spencer, 256 N.C. 487, 124 S.E.2d 175 (1962); State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961); State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961), cert. den. 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961). And all defenses presented by defendant's evidence are substantial features of the case. State v. Faust, supra. See also State v. Sherian, 234 N.C. 30, 65 S.E.2d 331 (1951).

Where there is evidence that defendant acted in self-defense, the court must charge on this aspect even though there is contradictory evidence by the State or discrepancies in defendant's evidence. State v. Hipp, 245 N.C. 205, 95 S.E.2d 452 (1956); State v. Sherian, supra; State v. Riddle, 228 N.C. 251, 45 S.E.2d 366 (1947).

At the outset of the charge the trial judge explained that defendant was presumed to be innocent and that the burden rested with the State to satisfy the jury beyond a reasonable doubt of defendant's guilt before they could convict him. After general instructions and a review of the evidence of the State and of defendant, instructions were given as to the elements of second degree murder and of manslaughter. The court then charged the jury in substance that the intentional use of a deadly weapon as a weapon when death proximately results from such use gives rise to the presumptions (1) that the killing was unlawful, and (2) that it was done with malice, and that an unlawful killing with malice is murder in the second degree. The trial judge further charged that in such event it would be incumbent upon defendant to satisfy the jury of facts sufficient to mitigate the killing and reduce it to manslaughter or to excuse it altogether on the ground of self-defense. The court then gave a general statement as to the law of self-defense and as to what the defendant must satisfy the jury in order to mitigate the killing and reduce it to manslaughter or to excuse it altogether on the ground of self-defense.

In the final mandate to the jury the court stated:

"So, I charge you, members of the jury, that if you find from the evidence beyond a reasonable doubt that on this 18 day of January, 1973, the defendant intentionally and with malice and without justification or excuse, shot the deceased, Thomas, with a pistol as has been offered in evidence here as State's Exhibit 3, thereby proximately causing Thomas' death, nothing else appearing, it would be your duty to return a verdict of guilty of murder in the second degree.

"However, if you do not so find, or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty of murder in the second degree; or, if, in a fair and impartial consideration of all the facts and circumstances in the case, there should arise in your minds a reasonable doubt as to either element of the offense of murder in the second degree, it would be your duty to give the defendant the benefit of that doubt, and to acquit him on the count of murder in the second degree.

"Now, if you find the defendant guilty of murder in the second degree, you will not consider the count of manslaughter. But, if you find the defendant not guilty of murder in the second degree, then, you will consider whether or not he be guilty of the offense of manslaughter.

"So, the court instructs you, members of the jury, if you find the defendant not guilty of murder in the second degree, but you find from the evidence beyond a reasonable doubt that on or about the 18 day of January, 1973, the defendant intentionally shot Thomas with a deadly weapon, that is, the pistol offered in evidence here as State's Exhibit 3, thereby proximately causing Thomas' death, but you are satisfied that the defendant killed Thomas without malice, or that he killed him in the heat of a sudden passion, and that in doing so, that he used excessive force in the exercise of self-defense, it would be your duty to return a verdict of manslaughter. If you do not so find, you would return a verdict of not guilty; or, if upon a fair and impartial consideration of all the facts and circumstances in the case there should arise in your minds a reasonable doubt as to this offense of manslaughter, it would be your duty to give the defendant the benefit of that doubt, and to find him not guilty upon the count of manslaughter.

EXCEPTION XIV

"Now, if you find the defendant not guilty of murder in the second degree, and you find the defendant not guilty of manslaughter, it would be your duty to return a verdict of not guilty.

"Now, are the twelve in the box all in good health, and feel like you can deliberate and return a verdict in this case? All right, at this time, the court will excuse the 13th and 14th jurors. You may stand aside. The twelve may retire and deliberate as to your verdict, and after you have reached a verdict, which must be unanimous, come back in the courtroom, please. You may retire."

Defendant contends that following the mandate on manslaughter the jury should have been instructed: "Or, if you are satisfied that the defendant acted in self-defense, then it will be your duty to return a verdict of not guilty."

We agree with defendant that a specific instruction on self-defense should have been given by the trial judge in his final mandate to the jury. Defendant's defense rested solely on self-defense. Although the court prior to the final mandate explained the law relating to self-defense, in his final instruction he omitted any reference to self-defense other than to say "but [if] you are satisfied that the defendant killed Thomas without malice, or that he killed him in the heat of a sudden passion, and that in doing so, that he used excessive force in the exercise of self-defense, it would be your duty to return a verdict of manslaughter." Here in the final mandate the court gave special emphasis to the verdicts favorable to the State, including excessive use of force in self-defense as a possible verdict. At no time in this mandate did the court instruct the jury that if it was satisfied by the evidence that defendant acted in self-defense, then the killing would be excusable homicide and it would be their duty to return a verdict of not guilty.

The failure of the trial judge to include not guilty by reason of self-defense as a possible verdict in his final mandate to the jury was not cured by the discussion of the law of self-defense in the body of the charge. By failing to so charge, the jury could have assumed that a verdict of not guilty by reason of self-defense was not a permissible verdict in the case. The defendant was entitled under the law, following the mandate on manslaughter, to an instruction substantially as follows:

"If, however, although you are satisfied beyond a reasonable doubt that the defendant did intentionally shoot Thomas and thereby proximately caused his death, if you are further satisfied, not beyond a reasonable doubt, but are satisfied that at the time of the shooting the defendant did have reasonable grounds to believe and did believe that he was about to suffer death or serious bodily harm at the hands of Thomas, and under those circumstances he used only such force as reasonably appeared necessary, you the jury being the judge of such reasonableness, and you also are satisfied that the defendant was not the aggressor, then he would be justified by reason of self-defense, and it would be your duty to return a verdict of not guilty."

See State v. Fowler, N.C., 203 S.E.2d 803 (1974); State v. Camp, 266 N.C. 626, 146 S.E.2d 643 (1966); State v. Faust, supra; State v. Washington, 234 N.C. 531, 67 S.E.2d 498 (1951).

The trial court's failure to include such an instruction in its final mandate to the jury was prejudicial error and entitles defendant to a new trial.

The questions raised by defendant's other assignments of error may not recur upon a new trial. Hence, particular consideration thereof upon the present record is deemed inappropriate.

The case is remanded to the North Carolina Court of Appeals with direction that it remand it to the Superior Court of Gaston County for a new trial in accordance with the principles herein stated.

New Trial.