State v. Gadsden , 300 N.C. 345 ( 1980 )

266 S.E.2d 665 (1980)

STATE of North Carolina
v.
John GADSDEN and Carl Gadsden.

No. 112.

Supreme Court of North Carolina.

June 3, 1980.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Evelyn M. Coman, Raleigh, for the State.

Benjamin F. Clifton, Jr., Raleigh, for defendant-appellant John Gadsden.

Kyle S. Hall, Raleigh, for defendant-appellant Carl Gadsden.

BRITT, Justice.

DEFENDANT JOHN GADSDEN'S APPEAL

By his only assignment of error, defendant John contends the trial court erred in not submitting voluntary manslaughter as an alternative verdict as to him. He argues that if the jury had chosen to believe the state's evidence tending to show that he participated in the stabbing of Gordon, and then believed defendant Carl's testimony relating to self-defense, they could have found him as well as his brother guilty of voluntary manslaughter. We find no merit in the assignment.

It is well settled that the trial court is not required to charge the jury upon the question of a defendant's guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant's guilt of such lesser degrees. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976); State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); 4 Strong's N.C. Index 3d, Criminal Law § 115.

In the case at hand the trial court in instructing the jury gave both defendants the benefit of defendant Carl's testimony regarding self-defense. The court charged:

If, however, you believe that John Gadsden did not stab Gordon and that Carl Gadsden, who did not provoke or voluntarily enter into the fight, believed it necessary to stab Gordon to save himself from death or great bodily harm, that the circumstances as they appeared to Carl Gadsden at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, considering the size, age and strength of the defendant Carl Gadsden as compared to the size, age and strength of Jerome Gordon, and considering any weapon held by Gordon; and that in stabbing Gordon, Carl Gadsden did not use excessive force, that is, more force than reasonably appeared to him to be necessary to save himself from death or great bodily harm; then you will have determined that the killing was in self-defense, excused, and in that sense was lawful; your verdict as to each defendant in such case should be not guilty.

Thereafter, the court instructed the jury on the principles of heat of passion and excessive force and their relation to malice, a necessary element of second-degree murder. The instructions include the following:

The State's evidence tends to show that there was no provocation of the defendants by Gordon; that the defendants acted in anger but not in the heat of passion as the law defines that state of mind.

The evidence of the defendant Carl Gadsden tends to show that John Gadsden did not act at all against Gordon; that Gordon aggressively demanded that John Gadsden move out of the rooming house, then swung at John Gadsden, then attacked Carl Gadsden, holding him by the neck with his arm. If you believe that these actions on the part of Gordon took place as defendant Carl Gadsden testified, and believe that they adequately provoked heat of passion in the mind of Carl Gadsden and that he began stabbing Gordon so soon after such provocation that such a passion in a person of average mind and disposition would not have cooled, then you will have determined that Carl Gadsden acted without malice in stabbing Gordon.

* * * * * *

As to the second rule mentioned earlier, one who does not provoke or voluntarily enter into a fight and who reasonably believes it to be necessary to stab another to save himself from death or great bodily harm, is not excused by the law of self-defense if that stabbing is more force than reasonably appeared to the accused to be necessary.

It is for you the jury to say whether you find the true circumstances to be as recounted by the defendant Carl Gadsden, the force used, that is stabbing, reasonably appeared to Carl Gadsden to be necessary. If you believe the force used did reasonably appear to Carl Gadsden to be necessary, it was not excessive, then the killing is excused by the law of self-defense. If, however, you believe that it did not reasonably appear to him to be necessary to use that force, that is stabbing, it was excessive and the killing is not excused by the law of self-defense but it is without malice, then it is not second degree murder.

We hold that the trial judge did not err in failing to charge the jury that it might find defendant John guilty of voluntary manslaughter. The evidence presented by the state tended to show that he was guilty of murder or nothing. The evidence presented by defendant Carl tended to show that defendant John was not guilty of anything. The state's evidence tended to show no provocation of defendants by Gordon. Defendant Carl's evidence tended to show that he was provoked into stabbing Gordon but that defendant John, although provoked, did not stab Gordon. The question of excessive force arises solely on the testimony of defendant Carl and he testified that defendant John did not use any force except to push Gordon away from him. There was no evidence to require submission of voluntary manslaughter as to defendant John.

DEFENDANT CARL GADSDEN'S APPEAL

By his only assignment of error, defendant Carl contends the trial court erred to his prejudice in that it gave conflicting instructions to the jury. The assignment has no merit.

In explaining the law with respect to acting in concert, the court instructed the jury as follows:

So that, if you further find beyond a reasonable doubt that one or more stab wounds inflicted by either, proximately caused the death of Jerome Gordon, each would be equally responsible for the killing. (Underlining added.)

Defendant Carl argues that since voluntary manslaughter was not submitted as an alternative verdict for his brother, the quoted instruction conflicted with the instructions relating to voluntary manslaughter as to him and that he was prejudiced by the conflict.

The jury charge must be construed as a whole in the same connected way in which it was given; and "a disconnected portion may not be detached from the context of the charge and then critically examined for an interpretation from which erroneous expressions may be inferred". State v. Bailey, 280 N.C. 264, 185 S.E.2d 683, cert. denied, 409 U.S. 948, 93 S. Ct. 293, 34 L. Ed. 2d 218 (1972), and cases therein cited.

The quoted instruction was given very early in the charge when the court was instructing on second-degree murder. Much later in the charge the court gave clear instructions on voluntary manslaughter as related to defendant Carl, some of those instructions being set out above in discussing defendant John's appeal. In its final mandate the court again instructed clearly on what the jury would have to find in order to return a verdict of guilty of second-degree murder or voluntary manslaughter against defendant Carl.

We hold that the charge, when considered as a whole, was free from prejudicial error.

As to defendant John Gadsden—no error.

As to defendant Carl Gadsden—no error.

BROCK, J., did not participate in this decision.