State v. Minton

• Decision Date: 01 February 1952
• Docket Number: No. 222,222
• Citation: 234 N.C. 716,68 S.E.2d 844,31 A.L.R.2d 682
• Parties: , 31 A.L.R.2d 682 STATE, v. MINTON et al.
• Court: North Carolina Supreme Court

Page 844

68 S.E.2d 844

234 N.C. 716, 31 A.L.R.2d 682

STATE, v. MINTON et al.

No. 222

Supreme Court of North Carolina.

Feb. 1, 1952

Harry McMullan, Atty. Gen., and T. W. Bruton and Ralph Moody, Asst. Attys. Gen., for the State.

Trivette, Holshouser & Mitchell and Whicker & Whicker, all of North Wilkesboro, for the defendant, Edsel Minton, appellant.

Larry S. Moore, North Wilkesboro and F. J. McDuffie, Wilkesboro, for the defendant, Ben Bullis, appellant.

ERVIN, Justice.

The defendants make these assertions by their assignments of error:

1. That the court erred in refusing to dismiss the prosecution upon a compulsory nonsuit. G.S. § 15-173.

2. That the court erred in the admission of testimony.

3. That the court erred in its instructions to the jury.

The parties to homicides are divided into four classes: (1) Principals in the first degree. (2) Principals in the second degree. (3) Accessories before the fact. (4) Accessories after the fact. State v. Powell, 168 N.C. 134, 83 S.E. 310.

The State bottoms this prosecution on the theory that Minton is guilty as a principal in the first degree, and that Bullis is guilty as a principal in the second degree.

A principal in the first degree in the commission of a homicide is the person who actually perpetrates the killing, i. e., the person whose unlawful act causes the death of the victim without the intervention of any responsible agent. A principal in the second degree in the commission of a homicide is one who is actually or constructively present when a homicide is committed by another, and who aids or abets such other in its commission. State v. Allison, 200 N.C. 190, 156 S.E. 547; State v. Powell, supra.

To warrant the conviction of an accused upon a charge of unlawful homicide on the theory that he participated in the killing as a principal in the first degree, the State must produce evidence sufficient to establish beyond a reasonable doubt that the death proximately resulted from his unlawful act. State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Palmer, 230 N.C. 205, 52 S.E.2d 908; State v. Ellison, 226 N.C. 628, 39 S.E.2d 824; State v. Peterson, 225 N.C. 540, 35 S.E.2d 645; State v. Everett, 194 N.C. 442, 140 S.E. 22; State v. Johnson, 193 N.C. 701, 138 S.E. 19. The defendants contend that the State failed to present any testimony at the trial sufficient to support the conclusion that the death of the deceased was caused by the criminal agency of Minton, and that by reason thereof the action ought to have been involuntarily nonsuited as to each of them. They concede that the State's evidence suffices to show that Minton purposely shot and wounded the deceased with a pistol. They insist, however, that the prosecution did not produce any testimony indicating that the deceased died from the pistol wound.

The State did not undertake to show any causal relation between the wound and the death by a medical expert. For this reason, the question arises whether the cause of death may be established in a prosecution for unlawful homicide without the use of expert medical testimony. The law is realistic when it fashions rules of evidence for use in the search for truth. The cause of death may be established in a prosecution for unlawful homicide without the use of expert medical testimony where the facts in evidence are such that every person of average intelligence would know from his own experience or knowledge that the wound was mortal in character. Waller v. People, 209 Ill. 284, 70 N.E. 681; State v. Rounds, 104 Vt. 442, 160 A. 249. See, also, in this connection: State v. Peterson, supra; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; State v. Johnson, supra; Brundage v. State, 70 Ga.App. 696, 29 S.E.2d 316; James v. State, 67 Ga.App. 300, 20 S.E.2d 87; Brown v. State, 10 Ga.App. 216, 73 S.E. 33; Commonwealth v. Sullivan, 285 Ky. 477, 148 S.W.2d 343; People v. Jackzo, 206 Mich. 183, 172 N.W. 557; Franklin v. State, 180 Tenn. 41, 171 S.W.2d 281; Mayfield v. State, 101 Tenn. 673, 49 S.W. 742; Lemons v. State, 97 Tenn. 560, 37 S.W. 552; McMillan v. State, 73 Tex.Cr. 343, 165 S.W. 576; State v. Bozovich, 145 Wash. 227, 259 P. 395. There is no proper foundation, however, for a finding by the jury as to the cause of death without expert medical testimony where the cause of death is obscure and an average layman could have no well grounded opinion as to the cause. State v. Rounds, supra; 41 C.J.S., Homicide, § 312d.

When it is tested by these rules, the evidence of the State at the trial suffices to show beyond a reasonable doubt that the death of the deceased was proximately caused by the pistol bullet fired by Minton and the resultant hemorrhage.

The defendants lay hold on the State's testimony that the corpse was 'frozen stiff' on the morning of December 17, 1949, and base this assertion on it: 'Thus it appears from the State's witnesses that the deceased might well have come to his death by exposure.' The assertion rests on mere conjecture and speculation. Still we deem it not amiss to observe that Minton would not necessarily be exonerated from criminal responsibility for the death of the deceased on the present record even if the assertion had foundation in fact. An accused who wounds another with intent to kill him and leaves him lying out of doors in a helpless condition on a frigid night is guilty of homicide if his disabled victim dies as the result of exposure to the cold. This is true because the act of the accused need not be the immediate cause of the death. He is legally accountable if the direct cause is the natural result of his criminal act. Williams v. U. S., 57 App. D.C. 253, 20 F.2d 269; Gibson v. Commonwealth, 106 Ky. 360, 50 S.W. 532, 90 Am. St.Rep. 230; 40 C.J.S., Homicide, § 11b.

In passing from this phase of the appeal, we indulge the observation that good legal craftsmanship will undoubtedly prompt solicitors to offer expert medical testimony as to the cause of death in all prosecutions for unlawful homicide where such testimony is available.

Bullis takes this alternative and secondary position on the assignment of error based on the refusal of the court to enter a compulsory nonsuit: The action should have been involuntarily nonsuited as to him for insufficency of evidence of aiding and abetting on his part even if the State's testimony is ample to prove that Minton intentionally inflicted a mortal wound upon the deceased in his presence. This position is insupportable. The State's evidence suffices to show beyond a reasonable doubt not only that Bullis was actually present when Minton fatally wounded the deceased, but also that he was present with intent to assist Minton in killing the deceased in case such assistance became necessary and that his presence and purpose were known to Minton, who was encourage thereby to inflict the mortal wound. State v. Allison, supra; State v. Cloninger, 149 N.C. 567, 63 S.E. 154; State v. Chastain, 104 N.C. 900, 10 S.E. 519.

Many of the exceptions to the receipt of testimony tendered by the prosecution have been abandoned by the defendants under Rule 28 of the Rules of Practice in the Supreme Court. 221 N.C. 563; State v. Carter, 233 N.C. 581, 65 S.E.2d 9. Those which have been preserved are reviewed in the numbered paragraphs set forth below.

1. The State was properly permitted to exhibit to the jury the pistol of foreign manufacture identified by the witnesses Ezell Crysel and J. B. Edwards as having been possessed by the defendant Minton both before and after the homicide. Although the testimony did not directly show that this particular pistol was actually used to kill the deceased, the pistol corresponded in caliber with the bullet which inflicted the mortal wound, and might well have been the weapon employed for that purpose. State v. Brabham, 108 N.C. 793, 13 S.E. 217; Williams v. State, 73 Fla. 1198, 75 So. 785; People v. Sullivan, 345 Ill. 87, 177 N.E. 733; People v. Kircher, 309 Ill. 500, 141 N.E. 151; People v. Selknes, 309 Ill. 113, 140 N.E. 852; State v. Green, 115 La. 1041, 40 So. 451.

2. The State elicited from the defendant Bullis on his cross examination testimony indicating that his paramour 'was running around with Edsel Minton' while she was keeping house with him. The court received this evidence against Bullis but not against Minton. The woman was not a witness in the cause, and it is not altogether clear why this testimony was brought out or admitted. Be this as it may, the defendant Bullis waived the benefit of his original objection to its receipt by testifying without objection to the same facts in other portions of his examination. State v. Hudson, 218 N.C. 219, 10 S.E.2d 730. Besides, the defendant Minton gave exactly the same evidence without objection from Bullis at a subsequent stage of the trial. State v. Oxendine, 224 N.C. 825, 32 S.E.2d 648.

3. The State introduced in evidence a letter and oral statements of the defendant Minton promising Thelma Wyatt, who was detained in the county jail as a material witness for the prosecution, that he would procure her release from custody and take her anywhere she wanted to go if she would testify that she 'didn't know who killed Felts Curtis' and thus 'help get him free.' The court rightly ruled that this testimony was admissible against Minton but not against Bullis. An attempt by an accused to induce a witness to testify falsely in his favor may be shown against him. Such conduct indicates a consciousness on his part that his cause cannot rest on its merits, and is in the nature of an admission that he is wrong in his contention before the court. State v. Smith, 218 N.C. 334, 11 S.E.2d 165; U. S. v. Freundlich, 2 Cir., 95 F.2d 376; Doughty v. State, 44 Ariz. 100, 33 P.2d 991; Drake v. Commonwealth, 214 Ky. 147, 282 S.W. 1066; Perfect v. State, 197 Ind. 401, 141 N.E. 52; Commonwealth v. Min Sing, 202 Mass. 121, 88 N.E. 918; Wigmore on Evidence (2d Ed.), section 278; Underhill on Criminal...