State v. Baggett ( 1977 )

COPELAND, Justice.

The questions for our consideration relate to defendant’s two assignments of error, maintaining (1) there was insufficient evidence to support a verdict of first-degree murder and further contending (2) that the trial judge should have set aside the verdict of guilty. We find no merit in either of these assignments of error.

In order for the trial court to submit a charge of first-degree murder to the jury, there must be evidence tending to show that the defendant, with malice, after premeditation and deliberation, intentionally shot and killed the victim. Our court defines premeditation as “thought beforehand for some length of time, however short. State v. Benson, 183 N.C. 795.” State v. Reams, 277 N.C. 391, 401, 178 S.E. 2d 65, 71 (1970); State v. Biggs, 292 N.C. 328, 233 S.E. 2d 512 (1977); see State v. McCall, 286 N.C. 472, 212 S.E. 2d 132 (1975); State v. Britt, 285 N.C. 256, 204 S.E. 2d 817 (1974); State v. Van Lam dingham, 283 N.C. 589, 197 S.E. 2d 539 (1973).

“ ‘Deliberation means that the act is done in cool state of blood. It does not mean brooding over it or reflecting upon it for a week, a day or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of blood in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation.’ ” State v. Faust 254 N.C. 101, 106-07, 118 S.E. 2d 769, 772 (1961); see State v. Biggs, supra; State v. Britt, supra; State v. Reams, supra. “ ‘No fixed length of time is required for the mental processes of premeditation and deliberation constituting an element of the offense of murder in the first degree, and it is sufficient if these processes occur prior to, and not simultaneously with, the killing.’ ” State v. Perry, 276 N.C. 339, 347, 172 S.E. 2d 541, 547 (1970).

In Perry, the defendant was riding in the righthand passenger seat of an automobile on Wilmington and Peace Streets in the City of Raleigh. He and his two companions had been riding around Raleigh all day drinking. Defendant’s vehicle was in the left lane and the victim’s vehicle was in the right lane. Apparently they rode side by side for some distance. The victim was black and the defendant was white. There were words between them. After these words defendant pulled out his pistol and shot three times. One of the bullets struck the victim in the mouth, and he died as a result. One of the companions said to the defendant “you have killed that man.” The defendant replied “if you will back up I will finish it.” While in jail awaiting trial, defendant told a fellow prisoner “that black son-of-a-bitch told me to behave myself and go home and I shot him.” Our Court held this evidence to be sufficient to establish premeditation and deliberation.

We have held that premeditation and deliberation are not usually susceptible of direct proof but may be shown by the circumstances. State v. Van Landing ham, supra; State v. Perry, supra.

“Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: want of provocation on the part of the deceased; the conduct of the defendant before and after the killing; the use of grossly excessive force, or the dealing of lethal blows after the deceased has been felled.” State v. Van Landingham, supra at 599, 197 S.E. 2d at 545.

The State’s evidence is sufficient to support the following findings: (1) The defendant left his home after a dispute with his wife with a loaded shotgun and a loaded pistol; (2) Before leaving he consumed a substantial amount of whiskey; (3) After picking up his companions and proceeding towards Salemburg, he stopped beside the road and shot the pistol at a highway sign; (4) He indicated to his companions that he had a loaded shotgun in the car and gave each of them a shotgun shell to use if needed; (5) Upon arriving at “Sam’s Place,” defendant purchased a beer and went into the poolroom; (6) The deceased approached the defendant and was pushed away on three occasions, and on the last occasion the defendant struck him in the mouth; (7) Defendant asked if he wanted to do anything about it and the deceased answered “No”; (8) At this point the defendant without any cause or justification reached into his rear pocket, pulled out the silver-colored pistol and shot the deceased at least three times; (9) Some of the shots struck the deceased’s body as he fell to the floor; (10) As the defendant walked away, he turned, looked at the body of his victim and smiled.

Clearly the circumstantial standards which Chief Justice Sharp listed in State v. Landingham, supra, are met in this case. There was a want of provocation on the part of the deceased; the conduct of the defendant before and after the killing indicated a total disregard for human life; the defendant used grossly excessive force; and lethal blows were struck by bullets that entered the victim’s body as he fell to the floor. Here there was clearly sufficient time after defendant struck the victim in the mouth for him to form a fixed intent to kill. There was time for him to ask the victim if he wanted to do something about it and for deceased to answer “No.” There was time after that for defendant to reach into his rear pocket, pull out the pistol and fire it at least four times.

It is elementary that upon a motion for judgment of nonsuit all the evidence must be considered in the light most favorable to the State. In the instant case, the evidence introduced by the State, when so considered, is sufficient to raise a legitimate inference and to permit the jury to find that the defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished this purpose. State v. Buchanan, 287 N.C. 408, 215 S.E. 2d 80 (1975); State v. McCall, supra, State v. Britt, supra, State v. Van Landingham, supra; see State v. Witherspoon, 293 N.C. 321, 237 S.E. 2d 822 (1977), decided this date. It would appear that when the defendant left his home he did so with the intention to do violence to or murder someone before he returned. He departed looking for trouble and as is usually the case, he found it. This assignment of error is without merit and overruled.

The defendant’s motion to set aside the verdict on the ground that it was contrary to the weight of the evidence is addressed to the sound discretion of the trial judge, whose ruling is not reviewable on appeal in the absence of manifest abuse of discretion. State v. Witherspoon, supra. No abuse of discretion is shown; therefore, this assignment is overruled.

We thus conclude that the evidence supports a finding that the defendant with malice, premeditation and deliberation, shot and killed James Dee Williams. Because of the serious nature of the case, we have searched the record for other errors and have found none. In the verdict and judgment, we find

No error.