State v. Jennings , 5 N.C. App. 132 ( 1969 )

BRITT, J.

Defendant first assigns as error the overruling of his motion for nonsuit. It is well established in this jurisdiction that on motion to nonsuit in a criminal action, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the State’s evidence, are for the jury to resolve, and do not warrant nonsuit. 2 Strong, N.C. Index 2d, Criminal Law, § 104, pp. 648-650.

In State v. Cooper, 273 N.C. 51, 159 S.E. 2d 305, in an opinion by Parker, C.J., we find the following:

“* * * When the State satisfies the jury from the evidence beyond a reasonable doubt that the defendant intentionally shot the deceased or the defendant admits that he intentionally shot the deceased, and thereby proximately caused his death, it raises two presumptions against him: (1) That the killing was unlawful, and (2) that it was done with malice. This constitutes the felony of murder in the second degree. S. v. Gregory, 203 N.C. 528, 166 S.E. 387; S. v. Wagoner, 249 N.C. 637, 107 S.E. 2d 83; S. v. Phillips, 264 N.C. 508, 142 S.E. 2d 337; 2 Strong, N.C. Index, Homicide, § 13. The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions. S. v. Gordan, 241 N.C. 356, 85 S.E. 2d 322; S. v. Phillips, supra. When the presumption from the intentional use of a deadly weapon obtains, the burden is upon defendant to show to the satisfaction of the jury the legal provocation that will rob the crime of malice and thus reduce it to manslaughter or that will excuse it altogether upon the grounds of self-defense. S. v. Mangum, supra [245 N.C. 323, 96 S.E. 2d 39]; S. v. McGirt, 263 N.C. 527, 139 S.E. 2d 640; S. v. Todd, 264 N.C. 524, 142 S.E. 2d 154. When defendant rebuts the presumption of malice only, the presumption that the killing was unlawful remains, making the crime manslaughter. 2 Strong, N.C. Index, Homicide, § 13. It was incumbent upon defendant upon a plea of self-defense to satisfy the jury (1) that he did act in self-defense, and (2) that, in the exercise of his right to self-defense, he used no more force than was or reasonably appeared necessary under the circumstances to protect himself from death or great bodily harm. S. v. McDonald, 249 N.C. 419, 106 S.E. 2d 477. It is hornbook law that if excessive force or unnecessary violence is used in self-defense, the killing of the adversary is manslaughter at least. S. v. Cox, 153 N.C. 638, 69 S.E. 419; S. v. Glenn, 198 N.C. 79, 150 S.E. 663; S. v. Terrell, 212 N.C. 145, 193 S.E. 161; S. v. Mosley, 213 N.C. 304, 195 S.E. 830. * * *”

Applying the well-established principles above-stated to the evidence in this case, we hold that the evidence was sufficient to be submitted to the jury and the trial court did not err in overruling defendant’s motion for nonsuit. The assignment of error is overruled.

Defendant’s next assignment of error relates to the solicitor’s cross-examination of defendant with regard to previous criminal convictions without instructions by the court limiting such evidence to impeachment of defendant’s credibility. The record discloses that although defendant’s counsel objected to the questions of the solicitor and moved to strike the answers, he did not request the trial judge to instruct the jury to limit consideration of the evidence to impeachment purposes. In State v. Goodson, 273 N.C. 128, 159 S.E. 2d 310, it is said:

“Admissions as to convictions of unrelated prior criminal offenses are not competent as substantive evidence but are competent as bearing upon defendant’s credibility as a witness. Stansbury, North Carolina Evidence, Second Edition, § 112; State v. Sheffield, 251 N.C. 309, 312, 111 S.E. 2d 195, 197. No request was made that the court so instruct the jury. ‘It is a well recognized rule of procedure that when evidence competent for one purpose only and not for another is offered it is incumbent upon the objecting party to request the court to restrict the consideration of the jury to that aspect of the evidence which is competent.’ State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484; Stansbury, op. tit., § 79; Rule 21, Rules of Practice in the Supreme Court, 254 N.C. 803. * * *”

We hold that in the absence of a request by defendant’s counsel that the testimony be received for the limited purpose of impeachment, the trial court did not err and the assignment of error related thereto is overruled.

Defendant’s remaining assignments of error relate to the trial court’s instructions to the jury. We do not deem it necessary to discuss these assignments of error; suffice to say, we have carefully-considered the charge and find it to be free from prejudicial error. The assignments of error relating thereto are overruled.

The defendant received a fair trial and the sentence imposed was well within the limit provided by statute.

No error.

Mallabd, C.J., and Paricer, J., concur.