State v. Lamm

61 S.E.2d 188 (1950) 232 N.C. 402

STATE
v.
LAMM.

No. 74.

Supreme Court of North Carolina.

September 27, 1950.

R. F. Mintz, Wilson, for defendant-appellant.

Attorney General, Harry McMullan, Assistant Attorney General, T. W. Bruton, for the state.

WINBORNE, Justice.

The Attorney General for the State moves in this Court to dismiss the appeal for the reason that defendant's brief does not comply with Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544. As to this, we are of opinion that the brief is adequate to present the points principally relied upon by defendant as error in the trial court. Hence the motion is not allowed. And, as the life of defendant is at stake in this case, we have given due consideration to each assignment of error shown in the record, and error is not made to appear.

Defendant earnestly contends that there is error in the refusal of the court to allow his motion for judgment as of nonsuit on the first degree murder charge in compliance with the statute, G.S. § 15-173. The motion challenges the sufficiency of the evidence to show premeditation and deliberation beyond a reasonable doubt. State v. Bittings, 206 N.C. 798, 175 S.E. 299, and cases cited. See also State v. Bowser, 214 N.C. 249, 199 S.E. 31; State v. Hawkins, 214 N.C. 326, 199 S.E. 284.

It is appropriate, therefore, to recur to the principles of law applicable to the case. Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. § 14-17. State v. Hawkins, supra; State v. Chavis, 231 N.C. 307, 56 S.E.2d 678.

The intentional killing of a human being with a deadly weapon implies malice and, if nothing else appears, constitutes murder in the second degree. State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Chavis, supra.

"The additional elements of premeditation and deliberation, necessary to constitute murder in the first degree, are not presumed from a killing with a deadly weapon. They must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree can be rendered against the prisoner." State v. Miller, 197 N.C. 445, 149 S.E. 590, 592; State v. Payne, supra; State v. Hawkins, supra; State v. Chavis, supra.

"Premeditation means `thought of beforehand' for some length of time, however short." State v. Dowden, 118 N.C. 1145, 24 S.E. 722; State v. Benson, 183 N.C. 795, 111 S.E. 869, 871; State v. Hawkins, supra; State v. Chavis, supra.

In the Dowden case, 118 N.C. 1145, 24 S.E. 722, 723, supra, Avery, J., writing for the Court on the subject of premeditation had this to say: "The law does not lay down any rule as to the time which must elapse between the moment when a person premeditates or comes to the determination in his own mind to kill another person, and the moment when he does the killing, as a test. It is not a question of time. It is merely a question of whether the accused formed in his own mind the determination to kill the deceased, and then, at some subsequent period, either immediate or remote, does carry his previously formed determination into effect, by killing the deceased."

And it has been said that "deliberation means that the act is done in a cool state of blood. It does not mean brooding over it or reflecting upon it for a week, a day, or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation." State v. Benson, supra [183 N.C. 795, 111 S.E. 871]; State v. Steele, 190 N.C. 506, 130 S.E. 308; State v. Hawkins, supra; State v. Chavis, supra, and cases cited.

And, "in determining the question of premeditation and deliberation, it is proper for the jury to take into consideration the conduct of [defendant], before and after, as well as at the time of, the homicide, and all the attending circumstances." Stacy, C. J., in State v. Evans, 198 N.C. 82, 150 S.E. 678, 679; State v. Hawkins, supra, and cases cited.

Applying these principles to the case in hand, the evidence is abundantly sufficient to be submitted to the jury on the first degree murder charge, and to support the verdict of guilty of murder in the first degree as found by the jury.

Defendant also assigns as error portions of the charge in respect of the law applicable to his plea of insanity. The test of responsibility of a person charged with a criminal offense in this State is the capacity to distinguish between right and wrong at the time and in respect of the matter under investigation. State v. Shackleford, 232 N.C. 299, 59 S.E.2d 825, and cases there cited. "He who knows the right and still the wrong pursues is amenable to the criminal law." Stacy, C. J., in State v. Jenkins. 208 N.C. 740, 182 S.E. 324, 325, citing State v. Potts, 100 N.C. 457, 6 S.E. 657.

Tested by this principle, the charge of the court fairly presents the issue to the jury. No prejudicial error is made to appear.

Defendant also assigns as error the failure of the court to submit to the jury the question of manslaughter.

In this State it is a well recognized rule of practice that where one is indicted for a crime and under the same bill it is permissible to convict the defendant of "a less degree of the same crime", G.S. § 15-170, and there is evidence tending to support a milder verdict, the prisoner is entitled to have the different views presented to the jury, under a proper charge. State v. Robinson, 188 N.C. 784, 125 S.E. 617; State v. Staton, 227 N.C. 409, 42 S.E.2d 401. But where there is no evidence to support such milder verdict, the court is not required to submit the question of such verdict to the jury. Applying this rule to the case in hand, the evidence does not admit of a verdict of guilty of manslaughter. Hence there is no error in failing to so charge.

Other assignments of error are without merit, and require no express consideration.

Hence, in the judgment from which appeal is taken, we find

No error.