State v. Parker

BOBBITT, Chief Justice.

Defendant has abandoned the assignments of error based on his exceptions to the denial of his motions to dismiss under G.S. 15-173. Obviously, these assignments were without merit. Defendant’s remaining assignments relate to three disconnected portions of the charge to the jury.

The court instructed the jury that, before they could return a verdict of guilty of murder in the second degree or a verdict of guilty of manslaughter, the State had to satisfy them from the evidence beyond a reasonable doubt that defendant stabbed Diane with a knife; that the knife was a deadly weapon; that the knife passed through her upper left shoulder about the collarbone and penetrated into her body; and that the stab wound so inflicted by defendant proximately caused Diane’s death. Since an unlawful killing (without malice) of a human being constitutes manslaughter, proof that the knife was a deadly weapon was not a prerequisite to a verdict of guilty of manslaughter. Suffice to say, the instruction was not unfavorable to defendant. It served to draw into focus the crucial issue, namely, whether Lula or defendant stabbed and killed Diane.

If the State satisfied the jury from the evidence beyond a reasonable doubt that defendant stabbed Diane intentionally with a knife which constituted a deadly weapon and the stab wound so inflicted proximately caused her death, these facts would give rise to the presumptions that the killing was unlawful and with malice, the essentials of murder in the second degree. State v. Barrow, 276 N.C. 381, 390, 172 S.E. 2d 512, 518 (1970), and cases cited. The court charged the jury to that effect. The challenged excerpts from the charge presuppose the jury so found and that presumptions that the killing was both unlawful and with malice had arisen. They refer to the circumstances by which defendant could reduce the crime from murder in the second degree to manslaughter by establishing to the satisfaction of the jury facts sufficient to negate malice. Since defendant was convicted of manslaughter, error, if any, in these excerpts was harmless. Principles of law relating to self-defense were not involved.

Upon sharply conflicting evidence, the jury found that defendant stabbed and killed Diane. If so, under the evidence, defendant was guilty of manslaughter at least. Hence, the verdict and judgment will not be disturbed.

No error.