DocketNumber： 88
Judges： Lake
Filed Date： 6/1/1973
Status： Precedential
Modified Date： 10/19/2024
Supreme Court of North Carolina.
*507 Atty. Gen. Robert Morgan and Sp. Counsel Ralph Moody, Raleigh, for the State.
Elbert S. Peel, Jr., Williamston, for defendant.
*508 LAKE, Justice.
The defendant's first assignment of error is to the consolidation of the three cases for trial over his objection. GS 15-152 expressly permits the consolidation for trial of two or more indictments against a person for "two or more acts or transactions connected together." The shootings of Tyson and Gurganus were directly connected with and, for all practical purposes, contemporaneous with the shooting and killing of Jones. There was no error in the consolidation of these charges for trial. State v. Overman, 269 N.C. 453, 466, 153 S.E.2d 44; State v. White, 256 N.C. 244, 123 S.E.2d 483.
The second assignment is to the denial of the defendant's motion for judgment of nonsuit. There is obviously no merit in this assignment. State v. Cooke, 278 N.C. 288, 179 S.E.2d 365; State v. Primes, 275 N.C. 61, 165 S.E.2d 225. The defendant, himself, testified that he shot Jones. The doctor who performed the autopsy testified that in his opinion this was the cause of death. Scott, the only surviving eyewitness other than the defendant, testified that the shooting was deliberate, premeditated and unprovoked, and that the rifle of the deceased was still in the back seat of the car after the shooting of the deceased. The testimony of the defendant concerning his contention that the shooting was in self defense raised a question for the jury, not for the consideration of the court on the motion for judgment of nonsuit. State v. Price, 280 N.C. 154, 184 S.E.2d 866.
The third assignment of error is to the court's sustaining objections to the defendant's testimony as to whether Jones overheard the defendant's statement by telephone to Scott as to the reason why the defendant did not like to ride around with Jones. It appears from the record that the solicitor's objections were sustained after the witness had answered in the presence of the jury and the jury was not instructed to disregard the testimony. Thus, as a practical matter, the defendant had the benefit of the evidence. Furthermore, without objection, the defendant subsequently testified that when he and his companions arrived at the scene of the shooting, in response to an inquiry by the deceased, the defendant stated to the deceased exactly the same reason for not wanting to ride around with him. This cured any error which there may have been in the rulings of the court now assigned as error. "The exclusion of testimony cannot be held prejudicial when the same witness is thereafter allowed to testify to the same import, or the evidence is thereafter admitted, or the party offering the evidence has the full benefit of the fact sought to be established thereby by other evidence." Strong, N.C.Index 2d, Appeal and Error, § 49, and numerous cases there cited.
The fourth assignment of error is to the sustaining of the solicitor's objection to the question to the defendant's witness Cherry as to whether the deceased ever made any threats against Cherry. Had Cherry been permitted to answer the question, he would have said that the deceased at one time said to Cherry, "I will blow your head off." There is no contention that the defendant knew of this episode. There was no other evidence indicating that Jones was a violent man or had such a reputation, known to the defendant. The excluded testimony had no relevancy to the reasonableness of the defendant's asserted fear that Jones was about to kill him. There is no merit in this assignment of error.
The fifth assignment of error is to the court's charging the jury with reference to the duty of an aggressor to retreat. This was part of the court's charge concerning self defense. The defendant contends this was error because "there was no evidence of any fight or any altercation or dispute." On the contrary, the defendant testified, in direct contrast to the testimony *509 of Scott, that as he was preparing to get out of the car at the scene of the shooting, he suddenly observed Jones pointing his rifle in the defendant's face and thereupon he fell to his knees outside the car and the two men crept around the car on opposite sides of it, each armed with a gun and that his shooting of Jones "was self defense." We find no error in this portion of the charge of the trial judge.
Assignments of Error 6, 7 and 8 assert that, in the portions of the charge wherein the court was stating what the jury must find in order to return a verdict of guilty of first degree murder, a verdict of second degree murder, and a verdict of guilty of assault with a deadly weapon, inflicting serious injury (in connection with the shooting of Gary Tyson), the court failed to refer to the defendant's plea of self defense and to his contention that he was not guilty by reason of intoxication. The court charged the jury in full detail both upon the matter of self defense and also upon the matter of intoxication as a defense, and the defendant does not contend that these instructions were incorrect in any respect. The trial judge is not required to include in each sentence of his charge every relevant principle of law. "A charge will be construed contextually as a whole, and when, so construed, it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed, an exception thereto will not be sustained, even though the instruction might have been more aptly given in different form." Strong, N.C.Index 2d, Trial, § 33. So considered, we find no error in the instructions given to the jury concerning self defense and intoxication.
The defendant's Assignment of Error No. 10 is to the court's instruction that the law does not require any "specific intent for the defendant to be guilty of the crimes of second degree murder or manslaughter" and, therefore, the defendant's intoxication could have no bearing upon the jury's determination of his guilt or innocence of those crimes if the jury should come to consider either of them. The jury found the defendant guilty of first degree murder and so did not come to a consideration of his guilt of the lesser charges. The judge instructed the jury that to return a verdict of guilty of first degree murder, it must be satisfied beyond a reasonable doubt "that the defendant intended to kill Dallas Jones." As above noted, he charged correctly and in detail as to the bearing of intoxication upon the presence or absence of the "specific intent required for conviction of first degree murder." He likewise charged the jury with reference to intent as an element of the assault charges and concerning the relevance of intoxication thereto. There is no merit in this assignment of error.
The charge of the court with reference to self defense fully imcorporated the principles governing this defense as laid down in State v. Marshall, 208 N.C. 127, 179 S.E. 427. We have carefully considered the charge in its entirety and find therein no error prejudicial to the defendant.
In Case No. 72CR3490 the indictment charged that the defendant "did unlawfully, wilfully and feloniously assault Ronnie Gurganus with a certain deadly weapon, to wit: a 12 gauge shot gun, a firearm with the felonious intent to kill and murder the said Ronnie Gurganus inflicting serious injuries, not resulting in death * * *" (Emphasis added.) The verdict was, "Guilty of the charge of Assault with a deadly weapon with intent to kill." (Emphasis added.) The judgment is that the defendant, "having been found guilty of the offense of Assault with a firearm with intent to kill which is a violation of G.S. § 14-32(c) and of the grade of Felony" (emphasis added), be imprisoned for a term of five years. The verdict, as shown in the record, does not support the judgment, though it is clear from the evidence that the deadly weapon used was a firearm. Upon this verdict, G.S. § 14-32(c) does not apply and the maximum *510 sentence is two years. G.S. § 14-33(c). See, State v. Bentley, 223 N.C. 563, 27 S.E.2d 738. For this reason, the judgment in Case No. 72CR3490 is arrested and Case No. 72CR3490 is remanded to the Superior Court of Martin County for the entry of a judgment therein in accordance with the verdict. See, Strong, N.C.Index 2d, Criminal Law, § 127.
Case No. 72CR3490Judgment Arrested and Remanded for Judgment.
Case No. 72CR3488No Error.
Case No. 72CR3489No Error.