State v. Britt

• Citation: 204 S.E.2d 817,285 N.C. 256
• Decision Date: 15 May 1974
• Docket Number: No. 36,36
• Parties: STATE of North Carolina v. James Edward (Jimmy) BRITT.
• Court: North Carolina Supreme Court

Page 817

204 S.E.2d 817

285 N.C. 256

STATE of North Carolina v. James Edward (Jimmy) BRITT.

No. 36.

Supreme Court of North Carolina.

May 15, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen., James E. Magner, Jr. and Associate Atty. Archie W. Anders, Raleigh, for the State.

Johnson, Hedgpeth, Biggs & Campbell by John Wishart Campbell, Lumberton, for the defendant appellant.

BRANCH, Justice.

Defendant first assigns as error the action of the trial judge in denying his Motions for 'a Judgment of Dismissal' and a directed verdict of not guilty.

The Motion to Dismiss and the Motion for a Directed Verdict of not guilty presented the question of whether the evidence was sufficient to warrant its submission to the jury and to support a verdict of guilty of the offense charged in the indictment. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266. These Motions have the same legal effect as a Motion for Judgment in case of nonsuit. State v. Glover, 270 N.C. 319, 154 S.E.2d 305.

The lodging of these Motions when the indictment charges first degree murder requires the trial judge to determine whether the evidence, when taken in the light most favorable to the State, is sufficient to raise a legitimate inference, and to permit the jury to find that a defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished his purpose. State v. Johnson, 278 N.C. 252, 179 S.E.2d 429; State v. Perry, 276 N.C. 339, 172 S.E.2d 541.

All of the evidence in this case discloses that defendant did intentionally shoot deceased with a deadly weapon thereby proximately causing his death. Defendant's counsel, therefore, properly restricts his argument to the question of whether the evidence was sufficient to permit a jury to find that defendant acted after premeditation and deliberation.

Premeditation means thought before hand for some length of time, however short. State v. Johnson, supra; State v. Reams, 277 N.C. 391, 178 S.E.2d 65, cert. den. 404 U.S. 840, 92 S.Ct. 133, 30 L.Ed.2d 74.

Deliberation does not require brooding or reflection for any appreciable length of time, but imports the execution of an intent to kill in a cool state of blood without legal provocation, and in furtherance of a fixed design. State v. Johnson, supra; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188.

' Cool state of blood' does not mean the absence of passion and emotion, but an unlawful killing is deliberate and premeditated if done pursuant to a fixed design to kill, notwithstanding that defendant was angry or in an emotional state at the time unless such anger or emotion was such as to disturb the faculties and reason. State v. Reams, supra; State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. den. 368 U.S. 851, 82 S.Ct. 85, 7 L.Ed.2d 49.

In State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539, we stated:

'Ordinarily it is not possible to prove premeditation and deliberation by direct evidence. These facts must be established by proof of circumstances from which they may be inferred. Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: want of provocation on the part of the deceased; the conduct of defendant before and after the killing; the use of grossly excessive force, or the dealing of lethal blows after the deceased has been felled.'

See State v. Walters, 275 N.C. 615, 170 S.E.2d 484, and State v. Fountain, 282 N.C. 58, 191 S.E.2d 674.

In instant case, there was evidence of ill feeling between defendant and Clarence Blackwell, stemming from defendant's relationship with Blackwell's estranged wife.

On the evening of the shooting, defendant told Deputy Sheriff Herring that he had been to the City Police, talked to them about Clarence Blackwell, and 'didn't get no satisfaction.' He told the Deputy that if he couldn't take care of Blackwell he, defendant could. He said that Clarence Blackwell was not going to 'mess' Carolyn Blackwell that night like he did the night before. Defendant had purchased the .357 magnum pistol some three or four days prior to the shooting. He took this weapon and a shotgun into Mrs. Blackwell's house, placed the shotgun on the couch where he was sitting and laid the pistol on a nearby table. Defendant testified he shot Clarence Blackwell with the .357 magnum pistol.

Three witnesses testified that Clarence Blackwell had his hands raised and was fleeing from defendant when the shot was fired. Expert medical testimony tended to show that Clarence Blackwell died as a result of a gunshot would that entered from his back, and that there were no powder burns on deceased's body.

After the shooting, defendant did not attempt to aid the stricken victim, but according to his own testimony, 'I cocked the gun and started to shoot him again and thought I better not. He was on the floor at the time and coming after me. I was going to shoot him.' Defendant then walked out of the house carrying the pistol and the shotgun. He testified that he left Blackwell on the floor, 'pulling or crawling or something.'

This evidence, when taken in the light most favorable to the State, is sufficient to allow a legitimate inference of premeditation and deliberation so as to require the trial judge to submit murder in the first degree to the jury.

The trial court properly refused to grant defendant's Motions for Judgment of Dismissal and a directed verdict of not guilty.

Following the jury verdict of guilty of murder in the first degree, defendant moved that the verdict be set aside as being contrary to the weight of the evidence and the law. This motion was denied. Defendant then moved for a new trial. This motion was also denied.

We find no merit in defendant's contention that the trial judge erred in denying these motions to set aside the verdict and for a new trial on the ground that the verdict was contrary to the greater weight of the evidence. The motions were addressed to the sound discretion of the trial judge, and in the absence of abuse of discretion are not reviewable on appeal. G.S. § 15--174; G.S. 1A--1, Rule 59; State v. Bridgers, 267 N.C. 121, 147 S.E.2d 555; Pruitt v. Ray, 230 N.C. 322, 52 S.E.2d 876; State v. Wagstaff, 219 N.C. 15, 12 S.E.2d 657; 6 A Moore's Federal Practice, § 59.05(5). No abuse of discretion is shown. Neither do we find any fatal defect on the face of the record proper which would support defendant's motion for arrest of judgment. State v. Chestnutt, 241 N.C. 401, 85 S.E.2d 297; State v. Higgins, 266 N.C. 589, 146 S.E.2d 681.

Defendant next assigns as error the ruling of the trial judge permitting the introduction into evidence of a .357 magnum pistol. He argues that this weapon was not sufficiently connected with the commission of the offense to permit the trial court to admit it into evidence.

Defendant testified that he shot Clarence Blackwell with a .357 magnum pistol. Later on direct examination by defendant's counsel, Deputy Sheriff Herring testified that Britt's wife brought the weapon and a shotgun to him after the shooting.

Thereafter Deputy Herring was called as a rebuttal witness and testified that he received State's Exhibit 4, a .357 magnum pistol, from defendant's wife on the night of the shooting, that it had been in his possession since that time, and that it was the weapon described by defendant in his testimony as being the one used in the shooting of Clarence Blackwell.

Any object which has a relevant connection with the case is admissible in evidence. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506. Thus, weapons may be admitted into evidence when there is evidence tending to show that they were used in the commission of a crime. State v. Crowder, 285 N.C. 42, 203 S.E.2d 38; State v. Patterson, 284 N.C. 190, 200 S.E.2d 16; State v. Wilson, 280 N.C. 674, 187 S.E.2d 22; State v. Sneeden, supra; 1 Stansbury's North Carolina Evidence § 118 (Brandis Revision, 1973).

Here the evidence was sufficient to identify State's Exhibit 4 as the pistol used in the commission of the crime charged. Even absent such identification, admission of the exhibit would have been harmless error in view of defendant's testimony admitting that he shot Clarence Blackwell with a .357 magnum pistol. State v. Wilson, supra.

Defendant contends that the trial judge erred in two instances by refusing to admit testimony concerning conversations he had with police officers. The record does not disclose what the witness would have said had he been permitted to testify.

'Where the record fails to show that the witness would have testified had he been permitted to answer questions objected to, the exclusion of such testimony is not shown to be prejudicial. This rule applies as well to questions asked on cross examination.'

State v. Kirby, 276 N.C. 123, 171 S.E.2d 416. Accord, State v. Staten, 271 N.C. 600, 157 S.E.2d 225. See 3 N.C. Index 2d, Criminal Law § 169 and cases there cited.

There is no merit in this contention.

Defendant argues that the trial judge erred in refusing to permit him to testify as to the condition of the rear door of the residence in which the shooting took place.

On redirect examination of defendant, the following occurred:

'After I got out of the hospital, I made an examination of the back screen. I could see where the bullet went, and I found the holes in the back screen door, two holes about so far apart through the screen. (indicating)

Q. State whether or not they were there before the shooting if you know.

A. No, sir, they were not.

MR. BRITT: Object.

THE COURT: Sustained.'

It should be noted that there was no motion to strike this testimony and that the trial judge gave no instruction to the jury to disregard the testimony. Defendant seems to have successfully placed before the jury testimony which tended to show that the bullet exited from Blackwell's body and went through the back screen, and thereby in some degree refuted...