State v. Brannon

• Decision Date: 21 November 1951
• Docket Number: No. 4,4
• Citation: 67 S.E.2d 633,234 N.C. 474
• Parties: STATE, v. BRANNON et al.
• Court: North Carolina Supreme Court

Page 633

67 S.E.2d 633

234 N.C. 474

STATE, v. BRANNON et al.

No. 4

Supreme Court of North Carolina.

Nov. 21, 1951

C. E. Hyde and O. L. Anderson, Murphy, for appellants.

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

DENNY, Justice.

The failure of the court below to sustain the defendants' motion for judgment as of nonsuit, and their motion for a directed verdict of acquittal as to the charge of murder in the second degree, is assigned as error.

The ruling of the court below on these motions was proper and will be upheld. It is true the defendants were law enforcement officers and are contending that they killed the deceased in self defense while in the discharge of their official duties. Nevertheless, this does not change the general rule that where the evidence shows an intentional killing with a deadly weapon, the law implies malice, and the State cannot be nonsuited. As stated in State v. Utley, 223 N.C. 39, 25 S.E.2d 195, 201, 'And when this implication is raised by an admission or proof of the fact of an intentional killing, the burden is on the defendant to show to the satisfaction of the jury facts and circumstances sufficient to reduce the homicide to manslaughter or to excuse it.' State v. Vaden, 226 N.C. 138, 36 S.E.2d 913; State v. Debnam, 222 N.C. 266, 22 S.E.2d 562; State v. Mosley, 213 N.C. 304, 195 S.E. 830; State v. Terrell, 212 N.C. 145, 193 S.E. 161; State v. Keaton, 206 N.C. 682, 175 S.E. 296; State v. Johnson, 184 N.C. 637, 113 S.E. 617.

Furthermore, submission to the jury of the question of the guilt of the defendants of murder in the second degree was harmless since the jury returned a verdict of manslaughter. State v. Artis, 233 N.C. 348, 64 S.E.2d 183; State v. Beachum, 220 N.C. 531, 17 S.E.2d 674; State v. Blackwell, 162 N.C. 672, 78 S.E. 316.

The defendants assign as error the failure of the court to instruct the jury not to consider statements made by the witnesses R. V. Dockery and Ed Dockery to the effect that 'Hoyt (the deceased) got so weak' just before the defendant Garren fired the last shot. The court sustained the objections to the statements even though the defendants interposed no objections to the preceding questions.

Since no objections were made to the questions which preceded the statements and no request to strike the answers were interposed, and no request was made to the court to instruct the jury not to consider them, these exceptions were waived. State v. Holland, 216 N.C. 610, 6 S.E.2d 217; State v. Gooding, 196 N.C. 710, 146 S.E. 806; State v. Green, 152 N.C. 835, 68 S.E. 16. Moreover, we consider the statements harmless in view of the medical and other testimony which was before the jury. Barton had been shot three times by Brannon before he was shot by Garren, and if Garren's own testimony is to be believed, he fired the fourth shot which entered the left leg of the deceased. This shot, according to the medical testimony, entered the left leg near the groin and came out through the thigh. Prior thereto, one shot had entered the right forearm of the deceased and came out about an inch and a half below his elbow, and another one entered the back of the left arm and came out the front above the elbow. Still another shot entered his right chest; this bullet ranged upward and punctured the upper right part of his lung and fractured his windpipe.

The appellants have preserved and brought forward thirteen exceptions to contentions of the State, or the defendants, as given to the jury by the court in its charge.

It is well settled that any misstatement of the evidence by the trial Judge in reciting the contentions of the State, or a defendant, should be brought to his attention in apt time in order to afford him an opportunity for correction. State v. Shackleford, 232 N.C. 299, 59 S.E.2d 825; State v. Warren, 227 N.C. 380, 42 S.E.2d 350; State v. Biggerstaff, 226 N.C. 603, 39 S.E.2d 619; State v. Smith, 221 N.C. 400, 20 S.E.2d 360.

The defendants complain and assign as error the failure of the court to properly define and apply the law to the facts and explain the difference between self defense as applied to ordinary persons and as applied to officers attempting to make a lawful arrest.

Pertinent parts of the charge complained of with respect to the rights and duties of officers while making an arrest, are as follows: 'If you find from the evidence that the defendant Brannon apprehended the deceased, Hoyt Barton, in a violation of the prohibition law, I charge you that it was the duty of the officers to place him under arrest * * *. The officers owed the deceased no duty to allow him to go home nor were they required or under any duty to put off the arrest to a more favorable time * * *.

'The court further charges you that where an officer has legal authority to arrest, and while using proper means, if resisted, he may repel force with force and need not give back an inch; but he may not use excessive force * * *. When an offender resists arrest the officer may use sufficient force to overcome resistance, and if the resistance is with a deadly or dangerous weapon, and I charge you that the cue stick introduced in evidence here is a deadly weapon, the officer may resort to such force as necessary to avoid serious injury and accomplish the arrest. He is never required under such circumstances to afford the resisting offender the opportunities of a fair and equal struggle, but may avail himself of any advantages that arise in the conflict.

'It is the law of this State, and I charge you that forcible resistance to lawful arrest will not be sanctioned. As against those who defy its decrees and threaten violence to its officers, the law commands that its mandates be executed, peaceably, if they can, forcibly if they must. An officer making an arrest, either in case of felony or misdemeanor, may meet force with force, sufficient to...