State v. Bunton

• Decision Date: 10 January 1958
• Docket Number: No. 583,583
• Citation: 247 N.C. 510,101 S.E.2d 454
• Parties: STATE, v. Julius BUNTON.
• Court: North Carolina Supreme Court

Page 454

101 S.E.2d 454

247 N.C. 510

STATE, v. Julius BUNTON.

No. 583.

Supreme Court of North Carolina.

Jan. 10, 1958.

George B. Patton, Atty. Gen., T.W. Brunton, Asst. Atty. Gen., for the state

J.W. Clontz, High Point, for defendant appellant.

WINBORNE, Chief Justice.

Of the twenty-nine assignments of error grouped in the case on appeal, only exceptions to which assignments of error numbered 16, 17, 18, 19, 20, 21, 22, 23, 25, 26 and 27 relate are set out in defendant appellant's brief, or in support of which reason or argument is stated or authority cited. Hence, under Rule 28 of Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562, and decisions of this Court pursuant thereto, all other exceptions will be taken as abandoned by him.

The question then arises: Is there error in matters challenged by exceptions presented? Careful review and consideration of the record and case on appeal fails to disclose predjudicial error.

I. An inspection of the record proper, in the light of proper practice in trial of homicide cases, such as this is, discloses that orderly procedure was followed, and there is no error apparent upon the face of the record.

II. Assignments of error 21 and 25, based upon exceptions 21 and 25 to failure to charge in respect to character evidence, the defendant not having testified, or put on evidence as to his good character: Under cross-examination, witnesses put on the stand by defendant Kollock did testify to good character and reputation of defendant Bunton. And the court, in charging the jury, called attention to the fact that there was some character evidence introduced as to both defendants; that such evidence is substantive in that the jury would consider it as to the guilt or innocence of defendant,--as to whether a person whose character is testified to be good would commit such a crime. The charge is in substantial accord with proper instruction. State v. McMahan, 228 N.C. 293, 45 S.E.2d 340.

III. Assignments of error Numbers 17, 18, 19, 20, 22, 23 and 26, are based upon exceptions of like numbers, to portions of the charge which defendant Bunton contends are erroneous in that the court restricted the jury to the return of one of three verdicts--guilty of murder in the first degree, or guilty of murder in the first degree with recommendation of life imprisonment, or not guilty--without including murder in the second degree. Defendant, appellant, contends that the evidence as to his intoxication is sufficient to require the submission of question of second degree murder, and that, hence, it was the duty of the trial court to instruct the jury as to second degree murder as one of the verdicts which the jury might return. In support of this position these cases are cited: State v. Murphy, 157 N.C. 614, 72 S.E. 1075; State v. Shelton, 164 N.C. 513, 79 S.E. 883, and State v. Edwards, 211 N.C. 555, 191 S.E. 1.

In this respect, speaking of the question of intoxication in State v. Murphy, supra, Hoke, J., later C.J., delivering the opinion of the Court, had this to say: "It is very generally understood that voluntary drunkenness is no legal excuse for crime, and the position has been applied as controlling in many causes in this state and on indictments for homicide * * * The principle, however, is not allowed to prevail where, in addition to the overt act, it is required that a definite, specific intent be established as an essential feature of the crime. In Clark's Criminal Law, p. 72, this limitation on the more general principle is thus succinctly stated: 'Where a specific intent is essential to constitute crime, the fact of intoxication may negative its existence.' Accordingly, since the statute dividing the crime of murder into two degrees and in cases where it becomes necessary, in order to convict an offender of murder in the first degree, to establish that the 'killing was deliberate and premeditated,' these terms contain as an essential element of the crime of murder 'a purpose to kill, previously formed after weighing the matter' * * * a mental process, embodying a specific, definite intent; and, if it is shown that an offender charged with such crime is so drunk that he is utterly unable to form or entertain this essential purpose, he should not be convicted of the higher offense. It is said in some of the cases, and the statement has our unqualified approval, that the doctrine in question should be applied with great caution * * * [157 N.C. 614, 72 S.E. 1076.]."

However, it is provided by statute, in this State, that a "murder * * * which shall be committed in the perpetration or attempt to perpetrate any * * * robbery * * * or other felony, shall be deemed murder in the first degree * * *." G.S. § 14-17. State v. Lane, 1914, 166 N.C. 333, 81 S.E. 620; State v. Donnell, 1932, 202 N.C. 782, 164 S.E. 352; State v. Glover, 1935, 208 N.C. 68, 179 S.E. 6; State v. Exum, 1938, 213 N.C. 16, 195 S.E. 7; State v. Alston, 215 N.C. 713, 3 S.E.2d 11; State v. Miller, 1941, 219 N.C. 514, 14 S.E.2d 522; State v. King, 1946, 226 N.C. 241, 37 S.E.2d 684, and other cases.

To this statute, G.S. § 14-17, the General Assembly of 1949, Chapter 299, S 1, added...