State v. Hamrick , 30 N.C. App. 143 ( 1976 )

226 S.E.2d 404 (1976) 30 N.C. App. 143

STATE of North Carolina
v.
William Donald HAMRICK.

No. 7627SC238.

Court of Appeals of North Carolina.

July 21, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles J. Murray and Associate Atty. Joan Byers, Raleigh, for the State.

Julian B. Wray and John D. Church, Shelby, for defendant-appellant.

ARNOLD, Judge.

We reject defendant's contention that the trial court erred in admitting testimony by Johnny Black concerning the plan to rob Black's father, defendant's statement after that robbery that Lemmons claimed he had lost the money taken from Black, and defendant's statement that he might have to kill somebody after Black told him about Lemmons having spent a lot of money lately. Defendant argues the general rule that in a prosecution for one crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense. However, the instant case falls within the exception that allows evidence of another offense where it tends to show quo animo, intent, design, guilty knowledge, make out the res gestae, or shows a chain of circumstances concerning the offense charged, and is so connected as to shed light upon one or more of these questions. See 2 N.C. Index 2d, Criminal Law, § 34; also, Stansbury, N.C. Evidence, Brandis Revision, § 92.

In this case the evidence concerning a robbery by defendant and the victim, Lemmons, the failure of defendant to receive any of the money obtained in the robbery, and the evidence that Lemmons was spending a lot of money was competent to show intent and design by defendant to kill Lemmons. It also establishes a chain of circumstances and is so connected with the charge of killing Lemmons so as to throw light upon that charge at trial. State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Lassiter, 16 N.C.App. 377, 192 S.E.2d 21 (1972), cert. den. 282 N.C. 428, 192 S.E.2d 838 (1972). Moreover, we find that the court gave proper limiting instructions to the jury concerning their consideration of the evidence in question.

The witness Dale Newton testified concerning incriminating statements which defendant purportedly made to her. Defendant asserts that the trial court erred in not allowing his objections and motions to strike and suppress this testimony. He contends that at the time he made the statements to Dale Newton he was so intoxicated from liquor and drugs that he was in a state of "mania" and unconscious of the meaning of his words, and that his admissions were therefore inadmissible. We disagree.

Before allowing Dale Newton to testify regarding defendant's incriminating statements the court conducted a voir dire and made findings of fact. There was competent evidence to support the trial court's findings that any drugs and liquor consumed by defendant were voluntarily consumed by him and not furnished by any police or government official, and that any intoxication, if any, of defendant did not amount to mania; and that in his statements to Dale Newton defendant was aware of what he was saying and doing. Since the trial court's findings of fact are supported by competent evidence they are conclusive before this Court. State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974). The mere fact that defendant was intoxicated at the time he made incriminating statements does not render such statements inadmissible where the intoxication does not amount to "mania". State v. McClure, 280 N.C. 288, 185 S.E.2d 693 (1972); State v. Logner, 266 N.C. 238, 145 S.E.2d 867 (1966); State v. Oxendine, 24 N.C.App. 444, 210 S.E.2d 908 (1975).

Prior to trial defendant requested and received from the District Attorney a list of the State's witnesses. Defendant argues that the name of the witness Crisp was not on the list and therefore Crisp should not have been allowed to testify. He assigns error to the failure of the court to allow his motion to strike the testimony of Crisp. We see no grounds for defendant's position.

The record shows that the trial court offered defendant sufficient time to prepare for the proposed testimony of Crisp, and that defendant was in fact able to obtain two witnesses, prisoners, whose testimony tended to contradict the witness Crisp. Defendant has not shown bad faith on the part of the District Attorney, or any prejudice, in the omission of Crisp's name from the prior list of witnesses. Furthermore, there is no common law or statutory right which entitles defendant to a list of witnesses who are to testify against him in a criminal case. See State v. Carter, 289 N.C. 35, 41, 220 S.E.2d 313 (1975), and cases cited therein.

Defendant assigns error to the failure of the trial court to instruct the jury on voluntary manslaughter. However, the only evidence argued by defendant in support of an instruction on this lesser included offense was a statement in Dale Newton's testimony that defendant told her that he and Lemmons had gotten into an argument prior to the killing. This evidence is not sufficient to support a charge on voluntary manslaughter. Evidence of an argument, without some evidence of assault or threatened assault, is insufficient to support a charge as to manslaughter. State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975).

We are also unconvinced by defendant's argument that the trial court misstated the necessary elements of second degree murder by failing to instruct the jury that malice is an essential element of second degree murder. The jury was instructed that "if the State has satisfied you from the evidence and beyond a reasonable doubt that the defendant inflicted wounds with a deadly weapon on Rudolph Lemmons, Jr., that caused his death and that he did so intentionally, nothing else appearing, that would constitute murder in the second degree." His Honor further instructed "if the State has satisfied you from the evidence and beyond a reasonable doubt that the defendant unlawfully and with malice shot and killed the deceased, Rudolph Lemmons, Jr., then it would be your duty to return a verdict of guilty of murder in the second degree." (Emphasis added) The charge was proper. State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975).

Having reviewed all of defendant's assignments of error we hold that defendant received a fair trial free from prejudicial error.

No error.

BROCK, C. J., and PARKER, J., concur.