State v. Price , 271 N.C. 521 ( 1967 )

157 S.E.2d 127 (1967) 271 N.C. 521

STATE of North Carolina
v.
James Alford PRICE.

No. 272-E.

Supreme Court of North Carolina.

October 11, 1967.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

E. Glenn Scott, Jr., Charlotte, for defendant appellant.

BOBBITT, Justice.

Defendant's wife, while testifying in behalf of her husband, was asked on direct examination the following question: "Do you know your father's reputation for the use of violence, particularly when he was under the influence of alcoholic beverages?" The State objected, the court sustained the objection and defendant excepted to the court's ruling. Defendant's assignment of error based on this exception is without merit. Since the record does not show what the witness would have testified if permitted to answer, it cannot be determined whether the ruling was prejudicial. State v. Poolos, 241 N.C. 382, 85 S.E.2d 342. It is noted that the court admitted evidence that Wright had a general reputation for violence while drinking and evidence of Wright's specific acts of violence toward defendant while drinking.

Defendant excepted to and assigns as error excerpts from the charge relating to what must be established to raise the presumptions that the killing was unlawful and with malice. It is well established that these presumptions arise "when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted." State v. Gordon, 241 N.C. 356, 358, 85 S.E. 2d 322, 323, and cases cited; State v. Adams, 241 N.C. 559, 85 S.E.2d 918; State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83; State v. Revis, 253 N.C. 50, 116 S.E.2d 171; State v. Phillips, 264 N.C. 508, 515, 142 S. E.2d 337, 340. When considered in the light most favorable to the State, there was plenary evidence tending to show defendant intentionally shot Wright and thereby proximately caused Wright's death. Error, if any, in the court's instructions on this feature of the case was in favor of and not prejudicial to defendant.

Defendant excepted to and assigns as error portions of the charge relating to defendant's rights when acting in his own defense and in defense of his home and family. Careful consideration of the court's instructions on this feature of the case does not disclose prejudicial error. These instructions are in substantial accord with numerous decisions of this Court.

Defendant's more serious exceptions and assignments of error relate to portions of the charge as given bearing upon whether the actual shooting of Wright was of an accidental nature and upon whether the court failed to charge fully "on the issue of accidental death and the possibility of a verdict of involuntary manslaughter."

The court instructed the jury in substance as follows: If the jury found the actual shooting of Wright was not intended by defendant but was accidental, this fact was for consideration in determining whether defendant used excessive force under the circumstances in defense of himself and of his home and family.

Defendant contends the jury should have been instructed to return a verdict of not guilty if they found defendant did not intend that the bullet discharged from the pistol he fired would actually strike Wright; and that it was error to limit the significance of such fact to consideration in determining whether defendant used excessive force in defense of himself and of his home and family. This contention is untenable.

Defendant contends, and rightly so, that in an appropriate factual situation, a defendant, under his plea of not guilty, may rely on more than one defense, e.g., (1) that he acted in self-defense, and (2) that the shooting was accidental. Appropriate circumstances for the assertion of these defenses were present in State v. Wagoner, supra, where the evidence as to accidental shooting tended to show that the pistol was not intentionally fired but discharged accidentally.

Here, there is no evidential basis for a contention that the firing of the pistol was unintentional. The accident here, according to defendant's contention, is that defendant did not intend that any bullet from the intentionally fired pistol would actually strike Wright. The evidence most favorable to defendant tends to show it was his intention that the third bullet, as well as the prior two bullets, would strike in the area where Wright was standing and sufficiently close to him to put him in fear.

It is well established "that no man by the show of violence has the right to put another in fear and thereby force him to leave a place where he has the right to be." State v. Martin, 85 N.C. 508, 509; State v. Douglas, 268 N.C. 267, 150 S.E.2d 412. Here, on his own testimony, defendant assaulted Wright with a deadly weapon, thereby proximately causing Wright's death, and therefore was guilty of manslaughter, at least, unless he fired the pistol under such circumstances that the firing of the pistol was or reasonably appeared to be necessary in his own defense or in defense of his home or family. This was a matter for determination by the jury in the light of all circumstances disclosed by the evidence.

Defendant's guilt or innocence depended upon whether he acted within the limits of his legal right to defend himself, his home and his family. This conclusion is in accord with the court's instructions. Moreover, the court did not err by failing to instruct the jury with reference to involuntary manslaughter. There was no evidential basis for such instruction.

The record reveals another family tragedy. Apparently, Wright, when he was sober, enjoyed a cordial relationship with other members of the family, including defendant. However, when he was under the influence of intoxicants, it would seem that he became abusive, rowdy and combative. The jury seems to have evaluated the evidence properly, namely, by deciding that defendant under all the circumstances, notwithstanding his patience may have been exhausted, used more force than was or reasonably appeared to be necessary to defend and protect himself, his home and his family. The verdict of guilty of manslaughter and the judgment pronounced thereon will not be disturbed.

No error.