State v. Barber

154 S.E.2d 104 (1967) 270 N.C. 222

STATE
v.
Horace BARBER.

No. 575.

Supreme Court of North Carolina.

May 3, 1967.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen., Millard R. Rich, Jr., for the State.

H. M. Jackson and J. C. Pittman, Sanford, for defendant appellant.

LAKE, Justice.

In State v. Gordon, 241 N.C. 356, 85 S.E.2d 322, Bobbitt, J., speaking for the Court, said:

"When the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree. In State v. Gregory, 203 N.C. 528, 166 S.E. 387, where the defense was that an accidental discharge of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an intentional killing with a deadly weapon; and since the Gregory case it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression, intentional killing, is not used in the sense that a specific intent to kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. [Citations omitted.] A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions."

There was no error in the admission of the testimony of the several police officers concerning statements made in their presence by the defendant. The statements were obviously material both upon the question of the identity of the killer and upon the question of his intent. They were highly prejudicial to the defendant, but, as we said in State v. Gray, 268 N.C. 69, 78, 150 S.E.2d 1, the mere fact that a self-incriminating statement was made while the defendant was in the custody of police officers, after his arrest by them upon the charge in question and before the employment of counsel to represent him, does not, of itself, render it incompetent. The test of admissibility is whether the statement was in fact made voluntarily,

When it became apparent that the State was about to offer in evidence statements made by the defendant to the police officers, the learned trial judge, following the procedure approved by us in State v. Gray, supra, excused the jury from the courtroom and inquired fully into the circumstances under which the proposed statements were made. The defendant did not deny the statements or offer any testimony whatever to show that they were not made voluntarily.

The judge excluded all evidence relating to statements made in response to the two questions by Officer Rouse at the scene of the shooting. Although this officer's opening remark upon arrival at the scene, "Horace, what happened here?", is a far cry from the mental or physical torture intended to wring a confession from an innocent person, which the constitutional protections against self-incrimination were designed to prevent, and though the defendant was not technically under arrest when he replied, his statement in response to that question was excluded by the trial judge because the warning prescribed in Miranda v. State of Arizona, 384 U.S. 436, 85 S. Ct. 1602, 16 L. Ed. 2d 694, had not been given in its entirety. The trial judge likewise excluded the defendant's response to the question by Officer Rouse concerning the location of "the other weapon" for the reason that the warning given by the officer to the defendant did not comply with the formula prescribed in the Miranda case in its entirety. The correctness of these rulings is not before us on this appeal and we express no opinion thereon. They indicate the care with which the trial judge ruled upon the admissibility of statements made by the defendant to police officers.

On the other hand, the trial court found as a fact that the statements to which the other police officers were allowed to testify were made "freely and voluntarily." This finding, being supported by the evidence, is conclusive. State v. Gray, supra. The testimony of the officers recounting these statements by the defendant was therefore competent. This is not a case of a friendless transient locked in unfamiliar surroundings, deep in some secret recess of the police headquarters, alone except for armed strangers interrogating him unmercifully. This occurred in a relatively small North Carolina city where the defendant had lived for years and had a first-name acquaintance with several, if not all, of the officers to whom he talked without even waiting for them to question him.

We have carefully examined the charge of the trial judge to the jury in the light of the contention by the defendant that it fails to declare and explain the law arising on the evidence as is required by G.S. § 1-180. The defendant has pointed out no error in any instruction relating to the law or called to our attention any applicable principle of law not fully covered by the court's instructions. He has directed us to no misstatement or omission in the court's review of the evidence. We find no error in the charge and no merit in this assignment of error.

Other exceptions in the record are deemed abandoned, these not having been brought forward in the appellant's brief and no argument being stated or authority cited therein with reference thereto. Rule 28, Rules of Practice in the Supreme Court.

No Error.