State v. Cole, No. 126

Docket NºNo. 126
Citation185 S.E.2d 833, 280 N.C. 398
Case DateJanuary 28, 1972
CourtUnited States State Supreme Court of North Carolina

Page 833

185 S.E.2d 833
280 N.C. 398
STATE of North Carolina
v.
James Lewis COLE.
No. 126.
Supreme Court of North Carolina.
Jan. 28, 1972.

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.

HIGGINS, Justice.

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.

[280 N.C. 402] 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...

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7 practice notes
  • Cole v. Stevenson, No. 78-6211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 5, 1980
    ...that were presented, the North Carolina Supreme Court affirmed Cole's conviction, rendering its formal written opinion. State v. Cole, 280 N.C. 398, 185 S.E.2d 833 (1972). Cole subsequently filed a petition for post conviction collateral relief in the State court, which was denied. He did n......
  • Bauberger v. Haynes, No. 1:08cv15.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • October 27, 2009
    ...3, Ex. 3, 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 definit......
  • Cole v. Stevenson, No. 77-0351-HC.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 14, 1978
    ...imprisonment 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 ap......
  • State v. Cousins, No. 31
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 6, 1976
    ...S.E.2d 174; State v. Gurley, 253 N.C. 55, 116 S.E.2d 143; State v. Johnson, 227 N.C. 587, 42 S.E.2d 685. The State, citing State v. Cole, 280 N.C. 398, 185 S.E.2d 833, and State v. Sanders, 280 N.C. 81, 185 S.E.2d 158, contends that this was a Lapsus linguae on the part of the trial judge w......
  • Request a trial to view additional results
7 cases
  • Cole v. Stevenson, No. 78-6211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 5, 1980
    ...that were presented, the North Carolina Supreme Court affirmed Cole's conviction, rendering its formal written opinion. State v. Cole, 280 N.C. 398, 185 S.E.2d 833 (1972). Cole subsequently filed a petition for post conviction collateral relief in the State court, which was denied. He did n......
  • Bauberger v. Haynes, No. 1:08cv15.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • October 27, 2009
    ...3, Ex. 3, 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 definit......
  • Cole v. Stevenson, No. 77-0351-HC.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 14, 1978
    ...imprisonment 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 ap......
  • State v. Cousins, No. 31
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 6, 1976
    ...S.E.2d 174; State v. Gurley, 253 N.C. 55, 116 S.E.2d 143; State v. Johnson, 227 N.C. 587, 42 S.E.2d 685. The State, citing State v. Cole, 280 N.C. 398, 185 S.E.2d 833, and State v. Sanders, 280 N.C. 81, 185 S.E.2d 158, contends that this was a Lapsus linguae on the part of the trial judge w......
  • Request a trial to view additional results

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