State v. Adams, 6821SC280

• Decision Date: 18 September 1968
• Docket Number: No. 6821SC280,6821SC280
• Citation: 163 S.E.2d 1,2 N.C.App. 282
• Parties: STATE of North Carolina v. James Mark ADAMS.
• Court: North Carolina Court of Appeals

Page 1

163 S.E.2d 1

2 N.C.App. 282

STATE of North Carolina v. James Mark ADAMS.

No. 6821SC280.

Court of Appeals of North Carolina.

Sept. 18, 1968.

T. Wade Bruton, Atty. Gen., by Dale Shepherd and Andrew A. Vanore, Jr., Raleigh, Staff Attys., for the State.

Smith, Moore, Smith, Schell & Hunter, by Norman B. Smith, Greensboro, for defendant appellant.

BRITT, Judge.

The defendant assigns as error the failure of the court to sustain his motion for judgment as of nonsuit.

It is well settled in this jurisdiction that in passing upon a motion for judgment as of nonsuit in a criminal prosecution, we must consider the evidence in the light most favorable to the State, and if there is any competent evidence to support the charge contained in the bill of indictment, the case is one for the jury. State v. Kluckhohn, 243 N.C. 306, 90 S.E.2d 768; State v. Ritter, 239 N.C. 89, 79 S.E.2d 164. Furthermore, in the consideration of such motion, the State is entitled to the benefit of every reasonable inference that may be drawn from the evidence. State v. Ritter, supra; State v. Gentry, 228 N.C. 643, 46 S.E.2d 863. Applying the rule as stated in numerous decisions of our Supreme Court with respect to such motions, we hold that the State's evidence in the trial below was sufficient to carry the case to the jury. The assignment of error is overruled.

Defendant also assigns as error the following portions of the charge relating to defendant's plea of accident:

I suppose at this point I should state to you what meaning the law attaches to the term 'accident.' I instruct you that an accident is an event from an unknown cause, or it may be an unusual and unexpected event from a known cause; that is, some chance or casualty, and it means an event causing damage or death unexpectedly and without fault.

So, then, members of the jury, where a man is doing a lawful act in a careful manner and without any sort of unlawful intent, accidentally kills another, of course it is an excusable homicide. But these facts must concur, and in the absence of any one of them will involve guilt.

The assignment of error relating to the second paragraph of the quoted portion of the charge is well taken and is sustained.

In State v. Kluckhohn, supra, the defendant assigned as error a portion of the charge directed to the defendant's plea of misadventure or accident stated as follows: 'The defendant having entered a plea of Not Guilty, contends that the killing was through misadventure or accident and the Court instructs you that where one does a lawful act in a careful and lawful manner and without any unlawful intent, accidentally kills, that is excusable homicide, but these facts must all appear and the absence of any one of these elements will involve guilt. Accident is an event that happens unexpectedly and without fault.'

In an opinion written by Denny, J. (later C.J.), our Supreme Court declared:

The vice in this instruction is that it leaves the jury free to consider ordinary rather than culpable negligence as sufficient to make unavailing to the defendant the plea of accidental killing. State v. Early, 232 N.C. 717, 62 S.E.2d 84; State v. Wooten, 228 N.C. 628, 46 S.E.2d 868; State v. Miller, 220 N.C. 660, 18 S.E.2d 143; State v. Cope, 204 N.C. 28, 167 S.E. 456. A mere negligent departure from the conduct referred to in the challenged portion of the charge would not necessarily involve or constitute criminal guilt. A departure to be criminal would have to consist of an intentional, willful, or wanton violation of a statute or ordinance enacted for the protection of human life or limb which resulted in injury or death. Such a violation of a statute would constitute culpable negligence. State v. Cope, supra. 'Culpable negligence in the law of crimes is something more than actionable negligence in the law of torts. State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Rountree, 181 N.C. 535, 106 S.E. 669. Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others. * * * But, an unintentional violation of a prohibitory statute or ordinance, unaccompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, is not such negligence as imports criminal responsibility.' State v. Cope, supra.

We hold that the charge in the instant case contains the same error declared in Kluckhohn.

Defendant assigns as error the failure of the trial judge to charge the jury on the doctrine of self-defense and defense of another. This assignment of error is well taken.

A person has the right to kill not only in his own self-defense but also in the defense of another who stands in a family relationship to him, and this right extends to the defense of one's parent. State v. Carter, 254 N.C. 475, 119 S.E.2d 461; State v. Anderson, 222 N.C. 148, 22 S.E.2d 271. The privilege includes the right of a child to kill his father in defense of the child's mother and the father's wife. State v. Carter, supra. However, the right to kill in defense of another cannot exceed such other's right to kill in his own defense, including the requirement of reasonable apprehension of death or great bodily harm. 4 Strong, N.C. Index 2d, Homicide, § 10; State v. Gaddy, 166 N.C. 341, 81 S.E. 608.

Defense pleas of accident and self-defense are not necessarily inconsistent. 'The defendant's plea of not guilty entitled him to present evidence that he acted in self-defense, that the shooting was accidental, or both. Election is not required. The defendant may rely on more than one defense.' Higgins, J., in State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83.

The theory of the State's case was that on the occasion of the fatal shooting, the defendant was engaged in an unlawful act--pointing a gun in violation of G.S. § 14--34--the result of which caused the death of the deceased. But the literal provisions of G.S. § 14--34 are subject to the qualification that the intentional pointing of a gun is in violation thereof only if done willfully, that is, without legal justification. Lowe v. Department of Motor Vehicles, 244 N.C. 353, 93 S.E.2d 448.

Although the defendant contended that the actual discharge of the gun was not intended, he also contended that he hid the loaded gun in the garage and later took it in his hands for the purpose of protecting his mother from serious harm or death at the hands of his father. Proper instructions on self-defense and defense of another would have enabled the jury to determine whether the defendant was justified in having the loaded gun in his possession at the time of the fatality.

The tender age of the defendant presented a more compelling reason why the jury should have been charged on the principles of self-defense and defense of another in addition to the defense of accident. The evidence was plenary that throughout the afternoon preceding the family tragedy,...