State v. Rogers , 273 N.C. 330 ( 1968 )

159 S.E.2d 900 (1968) 273 N.C. 330

STATE
v.
James Fred ROGERS.

No. 255.

Supreme Court of North Carolina.

March 20, 1968.

T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.

T. O. Stennett, Charlotte, for defendant appellant.

HIGGINS, Justice.

As a result of the solicitor's announcement, the defendant could not be convicted of murder in the first degree, but of some lesser offense embraced within that charge. State v. Miller, 272 N.C. 243, 158 S.E.2d 47. The verdict of guilty of murder in the second degree was within the indictment.

According to the State's evidence, the defendant called Charles Graham, father of Elizabeth Coyle, over the telephone and made threats against all of the family. Graham armed himself and waited on the porch. His daughter, Julie Elizabeth Coyle, was sitting in a swing to her father's right. The defendant, as he had threatened, appeared in his automobile on Pegram Street and started shooting at Graham, who returned the fire. A shot struck Elizabeth Coyle as she was seated in the swing. She died within a few minutes.

The defendant testified he happened to pass the home of Charles Graham, who began the shooting. The defendant thereafter fired only to spoil Graham's aim. As he continued by the Graham home, he saw Elizabeth Coyle struggling with her father, apparently in an effort to prevent further shots.

The jury accepted the State's evidence which disclosed the defendant appeared at the Graham home, as he had threatened to do, and began shooting at Graham. Apparently the jury was not impressed by the defendant's testimony that he happened to be passing on his way home when Graham began shooting, and he returned the fire only to spoil Graham's aim.

The day was Sunday. The time, place and readiness of both participants to do battle on sight indicate prior preparation as contended by the State, rather than a meeting by accident as contended by the defendant. According to Graham's story, he was defending his home and his family against the defendant's threat that "he would be up there in a few minutes and get every one of you". Had the defendant killed Graham, a conviction of murder would have been warranted. If in the attempt to kill Graham he accidentally killed Elizabeth Coyle, a conviction of murder would likewise be justified.

"Where A. aims at B. with malicious intent to kill B., but by the same blow unintentionally strikes and kills C., this has been held by authorities of the highest rank to be murder. State v. Benton, 19 N.C. 196; State v. Fulkerson, 61 N.C. 233; State v. Cole, 132 N.C. 1069, [44 S.E. 391]." State v. Sheffield, 206 N.C. 374, 174 S.E. 105. See also State v. Burney, 215 N.C. 598, 3 S.E.2d 24. The rule is stated in 26 Am.Jur., Homicide, Section 35, Page 170: "The fact that the homicidal act was directed against or intended to effect the death of one other than the person killed does not relieve the slayer of criminal responsibility. * * * Under this rule the fact that the bystander was killed instead of the victim becomes immaterial and the only question at issue is what would have been the degree of guilt had the result intended been accomplished. * * * The malice or intent follows the bullet."

We have assumed the defendant intended to kill Graham and accidentally killed Elizabeth Coyle. However, this assumption is favorable to the defendant. He may have intended to kill Elizabeth Coyle and accomplished that purpose, and thus committed an even more reprehensible offense.

The several questions on the part of the court do not appear objectionable as going beyond the purpose of clarification. Likewise the court's statement of contentions and its instructions as to the principles of law applicable to the facts in evidence are free from valid objection. In the trial and judgment of the Superior Court, we find

No error.