State v. Cole, 126
| Decision Date | 28 January 1972 |
| Docket Number | No. 126,126 |
| Citation | 185 S.E.2d 833,280 N.C. 398 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. James Lewis COLE. |
Robert Morgan, Atty. Gen., by Henry T. Rosser, Asst. Atty. Gen., for the State.
Sanford, Cannon, Adams & McCullough by John H. Parker, Raleigh, for defendant appellant.
By brief, the defendant presents four questions for review: I. Did the trial court err in its instructions on second degree murder and appellant's defenses? II. Did the trial court err in denying the defendant's motion for judgment of non-suit? III. Did the trial court err in denying the defendant's motion for a new trial? IV. Did the trial court err in signing and entering the judgment as set out in the record? Obviously Questions III and IV are formal. Answers to them depend upon the answers to Questions I and II.
In logical sequence the first question is the sufficiency of the evidence to go to the jury on the charge of murder in the first degree, or on any of the lesser included offenses. On the question of sufficiency, the evidence must be viewed in the light most favorable to the State. Any inconsistencies or contradictions must be resolved in favor of the State. State v. Robbins, 275 N.C. 537, 169 S.E.2d 858; State v. Bogan, 266 N.C. 99, 145 S.E.2d 374; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.
The evidence disclosed the defendant first picked a fight with Mozelle and Rozelle Bryant who were sitting at a table in the Torch Club. He first assaulted one of the girls. The other hit him with a chair. During the commotion which followed, Alex Bryant appeared at the Club wearing his work apron. The evidence is silent, but it appears probable someone notified him of the difficulty involving his sisters. Angry words but no blows were exchanged between Cole and Bryant. The latter returned to his work.
Within a few minutes the defendant appeared at the grocery store. On entering, he made a vulgar announcement not repeated here. The State contends the defendant entered the grocery store for a further confrontation. The defendant contended he entered the store in search of a Band-Aid to stop the bleeding from his head wound which was inflicted by Rozelle's chair. He admitted, however, he opened and concealed his knife before entering the store. The defendant further contended he and the deceased were scuffling over the deceased's pistol at the time it was discharged.
The defendant's contentions are contradicted by the evidence and by his conduct. The opening and concealing of his knife and the vulgar announcement were consistent with a search for trouble rather than a search for a Band-Aid. The entry of the bullet from the rear of the neck would be a difficult and unusual result from a scuffle over the pistol while the parties were facing each other. The fact the pistol was in the defendant's possession when he left the scene, indicates that perhaps he acquired possession in the scuffle and then fired the fatal shot. At all events, the evidence was sufficient to go to the jury on the charge of murder and the lesser included offenses. The motion to dismiss was properly overruled. State v. Perry, 276 N.C. 339, 172 S.E.2d 541; State v. Jennings, 276 N.C. 157, 171 S.E.2d 447; State v. Meadows, 272 N.C 327, 158 S.E.2d 638; State v. Foust, 258 N.C. 453, 128 S.E.2d 889.
The first objection to the charge involves the following: 'Second degree murder is the unlawful killing of a human being Without (emphasis added) malice and without premeditation and deliberation.' Malice is a necessary element of murder in the second degree. If unexplained, this error in the charge would require a new trial since the jury found murder in the second degree. Howeve...
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...Tr. Vol. IV at 38.) Although malice is the distinguishing element between second-degree murder and manslaughter, State v. Cole, 280 N.C. 398, 402-03, 185 S.E.2d 833, 836 (1972); State v. Hall, 59 N.C.App. 567, 573, 297 S.E.2d 614, 617 (1982), the jurors never looked up the definition of "ma......
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...for a period of from twenty to thirty years. His conviction was upheld by the North Carolina Supreme Court in State v. Cole, 280 N.C. 398, 185 S.E.2d 833 (1971) and a 1975 federal habeas corpus application also proved unsuccessful. Mr. Cole later filed a state postconviction application whi......
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