State v. Calloway, 68SC74

• Citation: 160 S.E.2d 501,1 N.C.App. 150
• Decision Date: 17 April 1968
• Docket Number: No. 68SC74,68SC74
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Monroe CALLOWAY.

Page 501

160 S.E.2d 501

1 N.C.App. 150

STATE of North Carolina v. Monroe CALLOWAY.

No. 68SC74.

Court of Appeals of North Carolina.

April 17, 1968.

T. W. Bruton, Atty. Gen., by Ralph Moody, Deputy Atty. Gen., for the State.

Bill Atkins and Fouts & Watson, by Dover R. Fouts, Burnsville, for defendant appellant.

BROCK, Judge.

The defendant assigns as error the instruction to the jury by the Court defining the intensity of proof required of the defendant to establish his plea of self-defense. Regarding that the trial judge instructed the jury as follows:

'When an intentional killing is admitted or established, the law presumes malice from the use of a deadly weapon. And the defendant is guilty of murder in the second degree unless he can satisfy the jury of the truth of facts which justify his act or mitigate it to manslaughter.

'The burden is on the defendant to establish such facts to the satisfaction of the jury, unless they arise out of the evidence against him. However, to meet the burden the defendant is not required to prove beyond a reasonable doubt the facts he relies on in mitigation, justification or excuse. Proof beyond a reasonable doubt calls for the highest intensity of proof known to our law.

'To satisfy a jury beyond a reasonable doubt means that they must be fully satisfied, or entirely convinced, or satisfied to a moral certainty of the truth of the charge. But the defendant does not meet the requirement of the law when he satisfies the jury merely by the greater weight of the evidence of the truth of the facts he relies on in mitigation, justification or excuse. (Emphasis added.)

'By the greater weight of the evidence, that is more convincing, or evidence that carries greater weight, greater assurance than that which is offered in opposition thereto. (sic)

'By the phrase 'to the satisfaction of the jury' is considered to bear a stronger intensity of proof than that by the greater weight or preponderance of the evidence.

'So, to prove a fact or facts to the satisfaction of the jury requires a higher degree of proof, and signifies something more than a belief founded on the greater weight of the evidence, but does not require as high a degree or as strong an intensity of proof as proof beyond a reasonable doubt.' (Emphasis added.)

The foregoing instruction clearly places upon the defendant a burden of proof of more intensity than 'by the greater weight of the evidence.' An instruction containing almost the exact words as the last paragraph of the foregoing instruction was disapproved in a Per curiam opinion by our Supreme Court in State v. Matthews, 263 N.C. 95, 138 S.E.2d 819.

Nevertheless, the Attorney General strenuously urges that a consideration of the entire portion of the instructions as set out above leads to the conclusion that it follows the law as laid down in State v. Carland, 90 N.C. 668.

In 1845, The Supreme Judicial Court of Massachusetts, in the landmark case of Commonwealth v. York, 9 Metc. 93, laid down the rule that justification for a homicide must be established by 'preponderating proof.' In 1855, The Supreme Court of North Carolina, in the case of State v. Johnson, 48 N.C. 266, adopted the rule that justification for a homicide must be established 'beyond a reasonable doubt.' In 1864, The Supreme Court of North Carolina, in the case of State v. Ellick, 60 N.C. 450, without mentioning either Commonwealth v. York, or State v. Johnson, announced the rule to be that justification for a homicide must be established 'to the satisfaction of the jury.' Then, in 1868, in the case of State v. Willis, 63 N.C. 26, The Supreme Court of North Carolina approved the rule of State v. Ellick (to the satisfaction of the jury) and specifically rejected the rule of Commonwealth v. York (preponderating proof), and the rule of State v. Johnson (beyond a reasonable doubt). In State v. Willis, the Court said this:

'We prefer to stand Super antiquas vias, and to adhere to the rules laid down in State v. Ellick, 60 N.C. 450. In that case the erroneous statement which we had inadvertently made in State v. Johnson, 48 N.C. 266, that it was incumbent on the prisoner to establish the matters of excuse or extenuation beyond a reasonable doubt, is corrected. In it is also corrected what we consider as erroneous in the decision of the Court in Commonwealth v. York, that the matter of excuse or extenuation which the prisoner is to prove must be decided according to the preponderance of evidence. It is more correct to say, as we think, that they must be proved to the satisfaction of the jury.'

In State v. Carland, supra, relied upon by the Attorney General, the Supreme Court was considering an instruction to the jury as follows:

'When the prisoner comes to show his matters of excuse or mitigation, he is not required to prove these matters beyond a reasonable doubt, but he is required to prove them to the satisfaction of the jury; but the degree of proof is not so far relaxed that he may establish his matters of excuse or mitigation by a Bare preponderance of proof, but must do so to the satisfaction of the jury.'

In overruling the exception to the quoted portion of the instructions, the Court said:

'We are unable to see in what respect the charge of his Honor is obnoxious to the prisoner's exception. The plain meaning of the instruction is, that a Bare preponderance of proof will not do to show matters of mitigation or excuse, unless it produces satisfaction of their truth in the minds of the jury. We can well conceive of cases where there may be a bare or slight preponderance of proof on one side, which yet fails to produce satisfaction, and still leaves the mind in an uncertain and dubious state. His meaning evidently is, and so...