State v. McCain

170 S.E.2d 531 (1969) 6 N.C. App. 558

STATE of North Carolina
v.
Roy McCAIN, Jr.

No. 6926SC468.

Court of Appeals of North Carolina.

November 19, 1969.

James L. Blackburn, Staff Atty., for the State.

Calvin W. Chesson and A. Victor Wray, Charlotte, for defendant appellant.

GRAHAM, Judge.

The defendant assigns as error the court's refusal to grant his motion for judgment of nonsuit made at the close of the State's evidence and renewed at the close of all of the evidence.

Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Foust, 258 N.C. 453, 128 S.E.2d 889; State v. Downey, 253 N.C. 348, 117 S.E.2d 39. Malice is implied in law from the intentional killing with a deadly weapon. State v. Mangum, 245 N.C. 323, 96 S.E.2d 39; State v. Benson, 183 N.C. 795, 111 S.E. 869. A knife may be used as a deadly weapon. State v. Randolph, 228 N.C. 228, 45 S.E.2d 132. Suffice it to say that in the trial of this defendant for second degree murder the testimony of various eyewitnesses that they saw him repeatedly stab the deceased with a knife and further evidence that the deceased died as a result of the stab wounds made out a clear case for the jury.

Defendant assigns as error the admission of testimony by a detective that the deceased had a cut on the right side of his neck and what appeared to be three stab wounds in the stomach, and that in his opinion the deceased was dead when he observed him at the scene of the alleged crime. "When relevant to the issue, a witness may testify to anything he has apprehended by any of his five senses, or all of them together." State v. Fentress, 230 N.C. 248, 251, 52 S.E.2d 795, 797. It would have been completely impractical and unnecessarily time consuming for the witness to have been required, as suggested by the defendant, to describe in detail his observations respecting the deceased's "breathing, color, appearance, pulse, etc." in lieu of stating his opinion that the deceased was dead. The question of whether a person is living or dead is not wholly scientific or of such a nature as to render valueless any opinion but that of an expert. See 31 Am. Jur.2d, Expert and Opinion Evidence, § 99. Common inferences derived from the appearance, condition, or mental or physical state of persons, animals and things are proper subjects of opinion testimony by non-experts. Bane v. Atlantic Coast Line R. R., 171 N.C. 328, 88 S.E. 477; Stansbury, N.C. Evidence 2d, § 129. The evidence was properly admitted.

Defendant's final assignments of error are to the admission of four photographs depicting the body of the deceased and the inside of the house where the alleged crime occurred. The record clearly indicates that these photographs were admitted only for the purpose of illustrating the testimony of witnesses. They were competent for that purpose. State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; State v. Matthews, 191 N.C. 378, 131 S.E. 743; State v. Russ, 2 N.C.App. 377, 163 S.E.2d 84. The defendant contends that the photographs were excessive and prejudicial and should have been excluded under the authority of State v. Foust, supra. This contention is without merit. In the Foust case the State introduced ten gory color photographs of the victim's body and elicited detailed testimony as to the death wound, even though the defendant had stipulated that the deceased died as a result of the gun shot wound which came from the gun in the State's possession. The court noted that under the circumstances of that case the State had made excessive use of the ten photographs. Here there was no stipulation as to the cause of death. Furthermore, the four photographs were useful to the witnesses in illustrating their testimony and likely helpful to the jury in understanding it. The fact that a photograph is gory or gruesome will not alone render it incompetent. State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. Gardner, supra.

In the entire trial we find no error.

No error.

CAMPBELL and PARKER, JJ., concur.