State v. Jones , 18 N.C. App. 531 ( 1973 )

197 S.E.2d 268 (1973) 18 N.C. App. 531

STATE of North Carolina
v.
Jimmy Gattis JONES and Grady Clee Jones.

No. 7310SC185.

Court of Appeals of North Carolina.

June 27, 1973. Certiorari Denied August 31, 1973.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Walter E. Ricks, III, Raleigh, for the State.

Tharrington, Smith & Hargrove, by Roger W. Smith, Raleigh, for defendants.

Certiorari Denied by Supreme Court August 31, 1973.

BROCK, Judge.

Each defendant assigns as error the trial judge's explanation of the first element of the offense charged against each defendant. We think that the instruction as given leaves something to be desired, but we do not believe the jury was in any way misled. The charge taken as a whole fairly explained to the jury each element of the offense. These assignments of error are overruled.

Defendant Grady Jones assigns as error the Court's failure to instruct the jury on the lesser included offense of assault with a firearm resulting in serious bodily injury. When a lesser included offense is supported by some evidence a defendant is entitled to have the different permissble views arising on the evidence presented to the jury under proper instructions. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). The presence of such evidence of an offense of lesser degrees is the determinative factor. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).

An intent to kill is a mental attitude which ordinarily must be proved by circumstantial evidence. State v. Cauley, 244 N.C. 701, 94 S.E.2d 915. An intent to kill "may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances." State v. Revels, 227 N.C. 34, 40 S.E.2d 474.

In the present case, the uncontradicted evidence is that defendant Grady Jones shot Officer Booth at close range in the face. Defendant's version of the shooting is summed up in his testimony as follows: "At that time, I saw there wasn't nothing else for me to do, and Mr. Booth cocked his gun back at that same time. During the course we were weaving back and forth. His gun was cocked. I in turn pulled my gun and shot. I shot him because I believed with all my heart if I had not, I wouldn't be sitting here; I would be dead. He would have likely shot me."

In our view this evidence does not justify submission of the issue of guilt of a lesser included offense. At best, this evidence only requires an instruction on the issue of self-defense. A person who deliberately fires a pistol into the face of his victim at point-blank range must be held to intend the normal and natural results of his deliberate act. The fact that in this case the victim's life was spared may be cause for a salute to medical science, but it hardly changes the intent apparently present when defendant pulled the trigger. We hold this assignment of error to be without merit.

Defendant Grady Jones assigns as error that the court erred in its explanation of the right of self-defense. Defendant testified as to how the altercation began as follows: "But, as Mr. Booth opened his door, he shoved me back up against the hood of the car and I was bent back over the hood of the car, and when I came up, Officer Booth and I went down on the ground in a struggle. . . ." The trial judge gave defendant the full benefit of the above testimony by submitting to the jury the question of self-defense. A reading of the charge as a whole upon the issue of self-defense convinces us that the jury clearly understood the applicable law. This assignment of error is overruled.

A discussion of the several remaining assignments of error would serve no useful purpose. In our opinion defendants had a trial which was free from prejudicial error.

No error.

HEDRICK and VAUGHN, JJ., concur.