State v. Sherrill , 28 N.C. App. 311 ( 1976 )

220 S.E.2d 822 (1976) 28 N.C. App. 311

STATE of North Carolina
v.
Samuel SHERRILL.

No. 7519SC634.

Court of Appeals of North Carolina.

January 7, 1976.

Atty. Gen. Rufus L. Edmisten by Special Deputy Atty. Edwin M. Speas, Jr., and Asst. Atty. Richard F. Kane, Raleigh, for the State.

Davis, Ford & Weinhold by Robert M. Davis, Salisbury, for defendant appellant.

HEDRICK, Judge.

The principal assignments of error brought forward and argued by the defendant relate to the charge. We are unable to distinguish the instructions challenged by these assignments of error from the instructions declared by our Supreme Court in State v. Ramey, 273 N.C. 325, 160 S.E.2d 56 (1968), to be erroneous and prejudicial. In Ramey, the defendant was charged with second degree murder and convicted of voluntary manslaughter. There the evidence tended to show that Ramey shot the deceased who expired a few hours later as a proximate result of the gunshot wounds inflicted by the defendant. In Ramey, the defendant contended that he acted in self-defense when he shot the deceased.

After general instructions and a review of the evidence of the State and the defendant, the court declared and explained the elements of second degree murder and manslaughter. The court explained the circumstances under which it would be the jury's duty to find the defendant guilty of second degree murder. Thereafter, the court charged the jury that if it found the defendant not guilty of second degree murder, it would be their duty to determine whether he was guilty of manslaughter.

Proximate cause is an element of second degree murder and manslaughter. If the jury did not find from the evidence and beyond a reasonable doubt that Redfern's death resulted proximately from the gunshot wounds inflicted by the defendant, it could not convict him of either offense. Nowhere in the charge did the judge declare and explain that before the jury could find the defendant guilty of manslaughter, it must find that Redfern's death was proximately caused by the gunshot wounds inflicted by the defendant. The charge with respect to manslaughter and self-defense presupposes that Redfern's death was caused by the gunshot wounds. If the jury followed the charge, it was bound to find the defendant guilty of manslaughter unless it found he acted in self-defense. The defendant was entitled to an explicit instruction that the burden was on the State to satisfy the jury from the evidence and beyond a reasonable doubt that the defendant intentionally shot and wounded Redfern and that his death was proximately caused by such wounds. The necessity for such an instruction was not obviated by the presence of plenary evidence to support such a finding. State v. Ramey, supra.

The State's contention that the charge when considered contextually as a whole is without error is untenable. The mere statement by the court that the defendant contended that Redfern's death was not proximately caused by the gunshot wounds in face of the court's failure to give an explicit instruction with respect to the element of proximate cause magnifies the error rather than curing it. No statement of the defendant's contentions regarding proximate cause could remove the prejudicial effect of the presumptions made in the charge with respect to manslaughter and self-defense that the defendant fired "the fatal shot" or "killed" Redfern in self-defense. Moreover, the recital of the defendant's contentions in this regard in the absence of an explicit instruction regarding the element of proximate cause, in our opinion, carries a clear implication that the burden was on the defendant to prove that Redfern's death was not proximately caused by the wounds inflicted by the defendant.

Since there must be a new trial, it is not necessary that we discuss defendant's other assignments of error.

For error in the charge, the defendant is entitled to a

New Trial.

BROCK, C. J., and CLARK, J., concur.