State v. Holloway

171 S.E.2d 475 (1970) 7 N.C. App. 147

STATE of North Carolina
v.
John Anderson HOLLOWAY.
STATE of North Carolina
v.
Phillip JONES.
STATE of North Carolina
v.
Larry Gregory JONES.

No. 6914SC538.

Court of Appeals of North Carolina.

January 14, 1970.

Robert Morgan, Atty. Gen., by James L. Blackburn, Staff Atty., for the State.

James R. Patton and C. Horton Poe, Jr., Durham, for defendant appellants.

GRAHAM, Judge.

Defendants contend that the deceased was killed by Phillip Jones in defense of his father and brother and at a time when such action was necessary or reasonably appeared to Phillip Jones to be necessary in order to protect them from death or great bodily harm. A person may lawfully kill in defense of his family under such circumstances. State v. Todd, 264 N.C. 524, 142 S.E.2d 154; State v. Marshall, 208 N.C. 127, 179 S.E. 427. The court properly instructed the jury as to the principles of self defense and the right to kill in defense of one's family but did not instruct the jury that they could return a verdict of guilty of voluntary manslaughter. Defendants assign the omission of this instruction as error.

Where there is evidence that would support a lesser degree of the crime charged in the bill of indictment, a defendant is entitled to have the question of his guilt of the lesser crime submitted to the jury. G.S. § 15-170. If the court fails to do so, the error is not cured by a verdict of guilty of a higher offense. State v. Freeman, 275 N.C. 662, 170 S.E.2d 461; State v. Moore, 275 N.C. 198, 166 S.E.2d 652; State v. McNeill, 229 N.C. 377, 49 S.E.2d 733; State v. Lee, 206 N.C. 472, 174 S.E. 288; State v. Williams, 185 N.C. 685, 116 S.E. 736; State v. Merrick, 171 N.C. 788, 88 S.E. 501.

In our opinion the issue of defendants" guilt of voluntary manslaughter arises on the evidence and should have been submitted to the jury. If Phillip Jones shot the deceased intentionally, he would be guilty of murder in the second degree at least unless he could rebut the presumption of malice arising from an intentional shooting and thereby reduce the offense to voluntary manslaughter. He could do this by proving to the jury's satisfaction that he killed the deceased in the heat of passion, or that while exercising his right to defend his family from death or great bodily harm, he used more force than was or reasonably appeared to him to be necessary. State v. Moore, supra; State v. Ramey, 273 N.C. 325, 160 S.E.2d 56. There is no evidence that deceased was killed in the heat of passion. However, evidence that Phillip Jones was acting in defense of his father and brother necessarily raises the issue of manslaughter because the jury could find that though Phillip was defending members of his family, he used more force than necessary or than reasonably appeared to him necessary to protect and defend them from death or great bodily harm. "Where the evidence is susceptible to the interpretation * * * that defendant killed in self defense, * * * the court must submit the question of defendant's guilt of manslaughter." 4 Strong, N.C. Index 2d, Homicide, § 30, p. 257.

Defendants also contend that the verdicts rendered, when considered with the charge, were inconsistent and should have been set aside. Since a new trial will be required for all defendants it is unnecessary that we rule on this assignment of error or discuss it in detail. However, we note that technically speaking there is no such offense in this State as "aiding and abetting in the offense of murder." When two or more persons aid and abet each other in the commission of a crime, all being present, all are principals, and equally guilty. State v. Peeden, 253 N.C. 562, 117 S.E.2d 398; State v. Spencer, 239 N.C. 604, 80 S.E.2d 670. It was therefore unnecessary for the trial judge to submit to the jury separate possible verdicts of "aiding and abetting" as to any of the defendants and the effect of doing so was to submit two possible verdicts of the same degree of crime.

We do not discuss the defendants' other assignments of error as there must be a new trial, and they are not likely to reoccur.

New trial in all cases.

CAMPBELL and FRANK M. PARKER, JJ., concur.