State v. Crews , 284 N.C. 427 ( 1974 )

201 S.E.2d 840 (1974) 284 N.C. 427

STATE of North Carolina
v.
Jimmy Lee CREWS.

No. 43.

Supreme Court of North Carolina.

January 25, 1974.

Atty. Gen. Robert Morgan and Asst. Attys. Gen. Edward L. Eatman, Jr. and Ralf F. Haskell for the State.

Stephen E. Lawing, High Point, for defendant appellant.

BOBBITT, Chief Justice.

None of defendant's assignments of error challenges the sufficiency of the evidence to support the verdict of guilty of murder in the first degree. Obviously, there was ample evidence to warrant and support that verdict.

Defendant listed nineteen assignments of error. His brief states that Assignments Nos. 7, 8, 9, 10 and 13 are not brought forward. It contains no discussion of or reference to Assignments Nos. 14, 15, and 16. These eight assignments "will be taken as abandoned by him." Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810; State v. Gordon, 241 N.C. 356, 362, 85 S.E.2d 322, 327 (1955).

Of the remaining eleven assignments, Nos. 1, 2, 3, 4, 5, 6, 11 and 18 refer to the court's charge; and Nos. 12 and 17 refer to the admission of evidence. Assignment No. 19 refers to a judgment for counsel fees entered after completion of the trial.

We consider first those assignments which refer to the charge. We notice first that neither the exceptions nor the assignments comply with the Rules of Practice in the Supreme Court. These words and figures, "Exceptions Nos. 24, 25, 33, 32, 27, 26 35," appear in the record immediately following the court's charge. Exceptions bearing these numbers do not appear in the charge. These words and figures do appear at intervals in the charge: "Exceptions Nos. 28 and 34"; "Exception No. 30"; "Exception No. 29"; and "Exception No. 31." None of these exceptions identifies by brackets or otherwise any particular portion of the charge to which exception is taken. These exceptions are ineffectual as bases for assignments of error in that they do not point out specific portions of the charge as erroneous.

Moreover, those assignments of error which refer to the charge are also defective because of defendant's failure to comply with the requirement that the appellant quote in each assignment the portion of the charge to which he objects. Too, where an assignment is based on failure to charge, it is necessary to set out the appellant's contention as to what the court should have charged. State v. Wilson, 263, N.C. 533, 139 S.E.2d 736 (1965); State v. Kirby, 276 N.C. 123, 131, 171 S.E.2d 416, 422 (1970).

None of defendant's assignments of error comply with well established appellate rules. Notwithstanding, since a life sentence is involved, we have elected to discuss defendant's contentions.

In Assignment No. 1, defendant asserts "[t]he court erred by failing to charge the jury with respect to the lesser degrees of the crime charged, in that the court failed to charge the jury with respect to voluntary manslaughter." There appears immediately below this assignment the following: "Exception No. 24."

The court properly instructed the jury that, if the State satisfied the jury beyond a reasonable doubt that defendant by the use of a pistol, a deadly weapon, intentionally shot and thereby killed his wife, the law would raise two presumptions, (1) that the killing was unlawful, and (2) that it was done with malice. State v. Barrow, 276 N.C. 381, 390, 172 S.E.2d 512, 518 (1970), and cases cited. There was no evidence that defendant shot his wife in the heat of passion or in self-defense. Defendant's testimony was to the effect that the pistol discharged accidentally when his mother-in-law was attempting to take the pistol from him. Under these circumstances defendant was not entitled to an instruction on voluntary manslaughter and was not prejudiced by the court's submission of involuntary manslaughter as a permissible verdict. State v. Wrenn, 279 N.C. 676, 683, 185 S.E.2d 129, 133 (1971); State v. Stimpson, 279 N.C. 716, 724, 185 S.E.2d 168, 173 (1971).

In Assignment No. 2, defendant asserts "[t]he court erred by failing to charge the jury with respect to the law of flight." There appears immediately below this assignment the following: "Exception No. 25."

In his brief, defendant quotes this excerpt from the charge: "In determining the question of premeditation and deliberation, it is proper for the jury to take into consideration the conduct of the defendant before and after, as well as at the time of the event, that is the time that Jevetta Louise Crews was shot and all the attending circumstances."

The quoted instruction is in substantial accord with the statement of Chief Justice Stacy in State v. Evans, 198 N.C. 82, 84, 150 S.E. 678, 679 (1929).

Defendant contends his "after" conduct would include his flight from the scene of homicide, a circumstance for consideration only on the issue of guilt and not as tending to show premeditation and deliberation. State v. Blanks, 230 N.C. 501, 504, 53 S.E.2d 452, 454 (1949).

In State v. Marsh, 234 N.C. 101, 105-106, 66 S.E.2d 684, 687-688 (1951), Chief Justice Stacy, referring to essentially the same instruction in a case where no instruction was given with reference to the law of flight, said: "The court was here speaking to the purpose and intent in the defendant's mind at the time of the homicide. This, the jury must have understood. Moreover, there is no mention in the court's charge of the defendant's . . . flight. . . . Nor was there any request to charge on the significance of these circumstances or in what light they should be considered by the jury. Evidently, the defendant's conduct long after the homicide was not a matter of debate on the hearing. The immediate circumstances were apparently sufficient. The contention presently advanced seems to have been an afterthought."

In the present case the court gave no instruction with respect to flight. The court related the testimony, principally that of defendant, with reference to what defendant did from the time his wife was shot until he appeared voluntarily at the Police Station in Montgomery, Alabama. Nothing in the court's review of the State's contentions implies that the State contended defendant's trip to Montgomery, Alabama, was a circumstance to be considered as evidence tending to show premeditation or deliberation. Our consideration of this contention impels the conclusion that the court's failure "to charge the jury with respect to the law of flight," was not prejudicial to defendant.

In Assignment No. 3 defendant asserts "[t]he court erred by failing to charge the jury with respect to accidental homicide"; and in Assignment No. 4 he asserts "[t]he court erred by failing to charge the jury with respect to the degree of proof of the defense of accidental homicide and other defenses available to the defendant." There appear immediately below these assignments, respectively, the following: "Exception No. 33," "Exception No. 32."

A defendant does not plead an affirmative defense by contending that the homicide was the result of accident or misadventure. This contention is merely a denial of guilt. No burden of proof rests on defendant to show accident or misadventure and the burden of proof rests upon the State to prove beyond a reasonable doubt all elements of the alleged crime. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Fowler, 268 N.C. 430, 150 S.E.2d 731 (1966); State v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971). We note this excerpt from the charge: "The court instructs you that if the killing of the deceased, Jevetta Louise Crews, was unintentional and not proximately caused by criminal negligence, then it would be your duty to return a verdict of not guilty."

In Assignment of Error No. 5 defendant asserts "[t]he court erred by failing to charge the jury with respect to the law of intoxication"; and in Assignment No. 6 defendant asserts "[t]he court erred by failing to charge the jury with respect to the degree of proof of the defense of intoxication and other defenses." There appear immediately below these assignments, respectively, the following: "Exception No. 27," "Exception No. 26."

The court's charge includes the following: "[Y]ou will consider his [defendant's] testimony that he had been drinking some whiskey as bearing upon whether the State has satisfied the jury from the evidence beyond a reasonable doubt that the defendant intentionally shot Jevetta Crews and thereby proximately caused her death, and you will also consider this as evidence as bearing upon whether the State has satisfied the jury from the evidence and beyond a reasonable doubt that the defendant unlawfully killed Jevetta Louise Crews in the execution of an actual specific intent to kill formed after premeditation and deliberation."

There is no evidence that defendant was intoxicated. The following is the only evidence relating to defendant's drinking. The statement defendant signed in Montgomery, defendant's Exhibit No. 2, includes the following: "I got to drinking and I went over there to her mama's house." On cross-examination, defendant testified that he drank some whiskey at "the post" in High Point before going to his uncle's service station.

Assuming, without deciding, there was sufficient evidence of defendant's drinking whiskey to justify an instruction with reference thereto, the instructions given were in accordance with our decisions. State v. Propst, 274 N.C. 62, 71-72, 161 S.E.2d 560, 567 (1968); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973), and cases there cited.

In Assignment No. 11, defendant asserts "[t]he court erred in charging the jury as to the careless and reckless use of a gun constituting an element of involuntary manslaughter, there being no evidence of such careless or reckless use." There appears immediately below this assignment the following: "Exception No. 31."

The State's evidence is clear and positive to the effect that defendant intentionally shot and killed his wife. Defendant's testimony, if considered in the light most favorable to him, discloses an unintentional homicide caused by his careless and reckless handling of the pistol. The court's instructions with reference to involuntary manslaughter are in accord with our decisions. State v. Foust, 258 N.C. 453, 459, 128 S.E.2d 889, 893 (1963); State v. Phillisp, supra, 264 N.C. at 517, 142 S. E.2d at 343; State v. Wrenn, supra, 279 N.C. at 683, 185 S.E.2d at 133; State v. Stimpson, supra, 279 N.C. at 724, 185 S.E. 2d at 173.

In Assignment No. 18, defendant asserts "[t]he court erred by failing to charge the jury that State's Exhibits 1 through 19, inclusive, were admitted as illustrative evidence only." There appears immediately below this assignment the following: "Exception No. 35."

In all instances, where exhibits such as photographs, diagrams, etc., were competent only to explain and illustrate the testimony of witnesses, the judge instructed the jury to this effect. When such proper instructions are given when the evidence is admitted, the judge is not required to repeat these instructions in the charge. This assignment refers to Exhibits Nos. 1-19, inclusive. Certain of the exhibits, for example, the pistol, the bullets, Jevetta's robe, etc., were competent as substantive evidence. This assignment is broadside, ineffectual and without merit.

In Assignment No. 12, defendant asserts "[t]he court erred in admitting into evidence defendant's statements not voluntarily made in violation of defendant's constitutional right against self-incrimination as guaranteed by the United States Constitution." There appears immediately below this assignment the following: "Exceptions 18 and 19."

The initial incriminating statement was made by defendant in Montgomery, Alabama, when he voluntarily went to the Police Station and reported that he had killed his wife the preceding night in Greensboro, North Carolina. Before admitting other statements made by defendant, a voir dire hearing was conducted. The evidence at voir dire fully supports the court's evidentiary and ultimate findings to the effect that all statements made by defendant in Montgomery, Alabama, were made freely, voluntarily and understandingly after the defendant had been clearly and fully advised of all his constitutional rights. Indeed, the manner in which defendant was treated by the Montgomery police is worthy of commendation.

In Assignment No. 17, defendant asserts "[t]he court erred in allowing into evidence State's Exhibits 1 through 19 containing photographs and items highly prejudicial and inflamatory to the defendant." Again, defendant lumps together Exhibits Nos. 1-19, inclusive, without differentiation as to the nature and character of these exhibits. Any contention that the photographs of unclothed portions of the body of Jevetta were incompetent when offered and admitted to illustrate the testimony of the doctor with reference to the entrance of the three bullets and the exit of two of them is without merit. Evidence that Jevetta was shot in her upper back once and twice in the front in the area of her chest and abdomen strongly corroborated the testimony offered by the State. They were competent for use by the doctor to illustrate his testimony. State v. Cutshall, 278 N.C. 334, 347, 180 S.E.2d 745, 753 (1971), and cases cited.

In Assignment No. 19, defendant asserts that "[t]he court erred in entering an order and judgment against defendant for payment of counsel fees, said order appearing on page 9 of the petition for certiorari, dated February 16, 1973 and signed by Lupton, Judge." There appears immediately below this assignment the following: "Exception No. 38." There appears in the record a judgment dated 16 February 1973 signed by Judge Lupton. This judgment provides for the recovery by the State of North Carolina from defendant of the sum of $1,000.00 for services provided defendant as an indigent by the Public Defender. Presumably this judgment was entered pursuant to G.S. 7A-455(b).

In his brief, defendant attacks this judgment on the following grounds: He asserts it was entered in his absence, without notice to him of any hearing with reference thereto, and without affording him any opportunity to be heard in connection therewith. He asserts further "that the judgment is in the nature of a civil judgment and there were not findings of fact nor conclusions of law sufficient to support such judgment pursuant to Rule 52 of the North Carolina Rules of Civil Procedure."

The record before us affords no basis for passing upon the validity of this judgment. Nothing therein supports or negates defendant's contentions. Under the circumstances, this Court, in the exercise of its supervisory jurisdiction, vacates this civil judgment without prejudice to the State's right to apply for a judgment in accordance with G.S. § 7A-455 after due notice to defendant and a hearing on such application in the Superior Court of Guilford County.

With reference to verdict and judgment thereon: No error.

With reference to civil judgment for counsel fees: Judgment vacated and cause remanded with instructions.