State v. Fowler

• Decision Date: 10 April 1974
• Docket Number: No. 34,34
• Citation: 285 N.C. 90,203 S.E.2d 803
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jesse Thurman FOWLER.

Page 803

203 S.E.2d 803

285 N.C. 90

STATE of North Carolina v. Jesse Thurman FOWLER.

No. 34.

Supreme Court of North Carolina.

April 10, 1974.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Sidney S. Eagles, Jr., Raleigh, for the State.

Chambers, Stein, Ferguson & Lanning by Charles L. Becton, Chapel Hill, for defendant appellant.

MOORE, Justice.

Assignments of error Nos. 1, 2, 3, 6, and 7 are not brought forward and argued in defendant's brief, and consequently these assignments are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court; State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. McLean, 282 N.C. 147, 191 S.E.2d 598 (1972). However, in view of the gravity of the punishment in this case, we have carefully reviewed these assignments but find them to be without merit.

By his fourth assignment of error defendant asserts that '(t)he trial court erred in its instructions to the jury in that the trial court: (1) misstated the law; (2) expressed opinions to the jury; and (3) inaccurately summarized the evidence and contentions of the State and of the defendant.'

Under this assignment defendant first contends that the trial court in discussing premeditation and deliberation expressed an opinion contrary to G.S. § 1--180 that there was no evidence of provocation in the case. That portion of the charge to which defendant points in support of this contention is as follows:

'Premeditation and deliberation may be shown by circumstances and in determining whether there was such premeditation and deliberation the jury may consider evidence Of the absence of provocation and all other circumstances under which the homicide was committed.' (Emphasis by defendant.)

This contention is without merit. Concerning premeditation and deliberation, the court stated:

'I have used the word 'premeditation' and 'deliberation.' Those elements must be proved beyond a reasonable doubt before a verdict of murder in the first degree can be rendered against the defendant. The State may prove these elements in many ways. Ordinarily they are not susceptible of direct proof but may be inferred from circumstances such as ill will, previous difficulty between the parties, declarations of an intent to kill either before or after the inflicting of the fatal wound, or where the evidence shows that the killing is done in a brutal and ferocious manner.

'Premeditation and deliberation may be shown by circumstances and in determining whether there was such premeditation and deliberation the jury may consider evidence of the absence of provocation and all other circumstances under which the homicide was committed.

'In determining the question of premeditation and deliberation the jury must take into consideration the conduct of the defendant before and after and all attending circumstances in determining whether the act shall be attributed to premeditated design or sudden impulse.'

Thereafter, the court fully defined premeditation and deliberation. When that portion of the charge to which defendant excepts is viewed in its context, it is apparent that the statement by the court was not an expression of an opinion that there was no evidence of provocation in this case. To the contrary, this instruction was a correct statement of the law in the case and was given by the court, as required by G.S. § 1--180, to assist the jury in reaching a verdict. It is in accord with many well-considered decisions of this Court. See State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. DuBoise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Hamby and State v. Chandler, 276 N.C. 674, 174 S.E.2d 385 (1970).

Defendant next contends that the manner in which the court summarized the evidence indicated to the jury that there was no provocation in the case. The paragraph in the charge complained of is as follows:

'The State's evidence tends to show that the defendant got a ride with Dolby to the Walnut Terrace area; that he had a pistol at the time of going there; that he got out of the automobile of Dolby and returned toward John Griffin after they had words as they passed in the automobile and the State's evidence tends to show that John Griffin did not have a weapon; was with his children or near his children and that he did not do any act or commit any act which would constitute provocation which would reduce the offense to manslaughter and that he did not do any act which would give a person reasonable grounds to believe that he was going to suffer any bodily harm whatsoever and particularly any serious bodily harm from John Griffin.'

This recapitulation of the evidence is in substantial accord with the testimony in the case. In reviewing the evidence the court is not required to give a verbatim recital of the evidence but only a summation sufficiently comprehensive to present every substantial and essential feature of the case. If there are minor discrepancies, they must be called to the attention of the court in time to afford opportunity for correction, otherwise they are deemed to be waived and will not be considered on appeal. State v. Thomas, 284 N.C. 212, 200 S.E.2d 3 (1973); State v. Tart, 280 N.C. 172, 184 S.E.2d 842 (1971); Northgate Shopping Center v. Highway Commission, 265 N.C. 209, 143 S.E.2d 244 (1965); 7 Strong, N.C. Index 2d, Trial § 33 (1968). No prejudicial error is shown by this statement. If defendant desired a more comprehensive statement of the evidence on this phase of the case, he should have requested it.

Under this same assignment defendant also contends that the trial court stated the following contention in such a manner that the jury could reasonably infer that this statement was the court's opinion:

'The State contends upon the plea of self-defense that there was no evidence that Griffin was at this time making any assault on the defendant or threatening him with an assault; that there was no circumstance from which the defendant might reasonably have believed that he was about to suffer any death or great bodily harm. . . .'

This contention was amply supported by the State's evidence. Again, if defendant had any objection to this contention, he should have stated it at the time. State v. Thomas, supra; State v. Tart, supra; Emanuel v. Clewis, 272 N.C. 505, 158 S.E.2d 587 (1968); 7 Strong, N.C. Index 2d, Trial § 34 (1968).

Additionally, defendant contends that the manner in which the trial court stated defendant's contentions lends credence to defendant's contention that the trial court gave unequal stress to the contentions for the State. The statement in the charge complained of is as follows: 'The defendant's evidence tends to show that sometime after that, he contends a fairly brief time, that he was actually starting to visit a friend and got a ride with Dolby. . . .' Defendant stated that here the court, 'as if editoralizing,' inserted 'he contends a fairly brief time.' Defendant had testified that approximately thirty minutes had elapsed from the time the deceased jumped on him and broke his nose at the King's Lounge to the time he saw the deceased at Walnut Terrace. The State's evidence was that three to four hours had elapsed. Therefore, the court's statement of defendant's contention was in accord with defendant's evidence and was in fact favorable to him. No prejudice appears.

By assignment of error No. 5 defendant asserts that '(t)he trial court erred by failing to give a full instruction on the circumstances under which the jury could return a verdict of not guilty. . . .' Defendant contends that the charge limited in effect the verdict of not guilty to a finding by the jury that defendant killed the deceased in self-defense, and that under the decisions in State v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971), and State v. Ramey, 273 N.C. 325, 160 S.E.2d 56 (1968), the court erred in failing to instruct the jury that if the State failed to satisfy it from the evidence beyond a reasonable doubt that the defendant was guilty of murder in the first degree or murder in the second degree or manslaughter, the jury should return a verdict of not guilty.

This assignment and the exceptions on which it is based do not comply with well-established appellate rules. Exceptions Nos. 34 and 35 appear at the end of the charge. Neither identifies by brackets or otherwise any particular portion of the charge to which exception is taken. These exceptions are ineffectual as bases for assignments of error in that they do not point out specific portions of the charge as erroneous. Neither does this assignment quote the portion of the charge to which defendant objects. Too, where the assignment of error is based on failure to charge, it is necessary to set out appellant's contention as to what the court should have charged. State v. Crews, supra; State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970); State v. Wilson, 263 N.C. 533, 139 S.E.2d 736 (1965). Even though this assignment does not comply with the well-established rules, since a death sentence is involved we have elected to discuss defendant's contention.

The court correctly instructed the jury as to murder in the first degree and murder in the second degree as follows:

'I instruct you, Members of the Jury, that if you find from the evidence beyond a reasonable doubt that on or about the first of July of this year the defendant, Jesse Thurman Fowler, did intentionally and without justification or excuse shoot John Griffin with a pistol and thereby proximately caused his death and that Jesse Thurman Fowler then intended to kill John Griffin and that he acted with malice and premeditation and deliberation, if you find all of those facts to exist beyond a reasonable doubt, it would be your duty to return a verdict of guilty of murder in the first degree. If you do not so find or have a reasonable doubt as to any one or more of those things, you would not return a verdict of guilty...