State v. Crisp, 579
| Decision Date | 19 September 1956 |
| Docket Number | No. 579,579 |
| Citation | 94 S.E.2d 402,244 N.C. 407 |
| Court | North Carolina Supreme Court |
| Parties | , 67 A.L.R.2d 236 STATE, v. Redman Earl CRISP. |
Aaron Goldberg, Rountree & Rountree, Wilmington, and S.B. Frink, Southport, for defendant, appellant.
William B. Rodman, Jr., Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.
At the close of the State's evidence the defendant made a motion for judgment of nonsuit, which the court overruled, and renewed such motion at the end of all the evidence, which the court refused. The defendant assigns this as error. However, he does not contend under this assignment of error that the court should have nonsuited the State, but that the court erred in not limiting the jury's consideration of the evidence to the offense of manslaughter alone.
The State's evidence presented these facts: On the night of 15 March 1955 James A. Ferreri, a 17 year old boy, Robert Hopper and Michael John Pollack, two 16 year old boys, were hitchhiking through North Carolina to Florida. A man gave them a ride in his car from Wilmington to the junction of Highways 74-76 and 17, which is about five miles south of Wilmington in Brunswick County. Here these three boys got out of the car about 11:30 p.m. They had no money, and no weapons, but did have some baggage. On Highway 17 at or near the junction there is a motel on one side of the highway, and on the other side is the residence of the defendant and an automobile garage and showroom and used car lot belonging to the defendant. In the used car lot the defendant had a number of used cars. Ferreri and Hopper went on the used car lot to find an automobile in which to spend the night: Pollack remained on the highway to see if they could get another ride. The door of the first car Ferreri and Hopper came to was open. They slammed its door, and walked down a couple of rows of cars. They opened the fifth or sixth car they came to, and put their baggage in the front seat. Ferreri called Pollack, saying "Mickey, come on down, we have found a place we can stay for the night." All three got in the back seat. Ferreri was on the left behind the steering wheel.
After they had been in the car a short time, they saw two men walking through the used car lot, and searching the cars by flashing a light into each car as they passed. When these two men reached the car the boys were in, one of them, D.N. Parker, said to the other, the defendant, "there are some boxes in the front seat of this car." The defendant flashed a light in the back seat saying "there they are," and began beating on the car's left door saying "open the door." Ferreri got up, unlatched and opened the door and sat back on the seat. The defendant had a flashlight in one hand and a pistol in the other. The defendant began asking questions as to what they were doing in the car, were they trying to steal it, who they were, etc. Ferreri had his hands up with nothing in them and was trying to answer the questions. The defendant pushed his pistol in Ferreri's face, who fell to the back of the seat, turned his head and covered his face. The defendant fired his pistol, and the bullet entered the back of Ferreri's head, went through his brain and skull, came out of his forehead and imbedded itself in the back of the car. Ferreri died as a result of this penetrating wound.
The boys had nothing in their hands at the time of the shooting and had made no threatening motions, nor used any menacing language. No one was touching the defendant, when he fired the pistol. When the defendant fired, he was standing on the ground leaning in the car, and at the time the pistol was 2 1/2 or 3 feet from Ferreri.
The defendant's evidence presented these facts: D.N. Parker, who worked at the motel, telephoned the defendant about 12:45 a.m. that someone was tampering with his automobiles on the used car lot. The telephone call waked the defendant from sleep. He put pants and a coat over his pajamas, shoes on his feet, picked up a flashlight and pistol, and left his home to go to the used car lot. Parker joined him on the way. They found the three boys in the back seat of one of the defendant's cars. As they approached the car, its door came open. The defendant flashed a light in the car on the boys, and asked what they were doing in the car. No one answered. He asked, why they didn't get out, get in the road and move off. The defendant was standing by the car. Ferreri drew back to hit the defendant. When he did, the defendant drew his pistol from his pocket, and fired it "across the ground" to scare him. When the pistol fired, Ferreri grabbed him with both hands, and pulled him down on his chest on the floorboards of the car. At that time this is the defendant's testimony as to what occurred: Ferreri released the defendant when the pistol fired. Only two shots were fired. On cross-examination the defendant testified Ferreri had a big lug wrench in his hand.
The defendant states in his brief: "The defendant denied firing the pistol, which resulted in the death of James Ferreri, claiming at all times it was an accidental shooting."
The defendant offered in evidence a torn pajama shirt, which he and his wife testified was not torn when he left home, and which he testified Ferreri tore when he pulled him in the car.
The evidence, considered in the light most favorable to the State, shows that the defendant intentionally killed James A. Ferreri with a deadly weapon, to wit, a pistol, by shooting him in the back of his head. An intentional killing with a deadly weapon raises two presumptions against the killer: first, that the killing was unlawful, and second, that it was done with malice. State v. Gordon, 241 N.C. 356, 85 S.E.2d 322; State v. Howell, 239 N.C. 78, 79 S.E.2d 235; State v. Benson, 183 N.C. 795, 111 S.E. 869. And murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Street, 241 N.C. 689, 86 S.E.2d 277; State v. Benson, supra.
The trial court correctly submitted to the jury the question as to whether or not the defendant was guilty of murder in the second degree, and the State's evidence is amply sufficient to support the verdict.
The defendant admits in his brief the State's evidence, if believed by the jury, made out a case of manslaughter. A motion for judgment of nonsuit is not the proper way to raise the defendant's contention. State v. Johnson, 227 N.C. 587, 42 S.E.2d 685; State v. Jones, 222 N.C. 37, 21 S.E.2d 812. If the defendant had properly raised his contention by requesting the judge to instruct the jury that they could not return a verdict for any higher offense than manslaughter, State v. Gregory, 203 N.C. 528, 166 S.E. 387, his contention is without merit.
The State's witness Hopper testified that he and Pollack were in the back seat of the car, when Ferreri was shot. The State rested its case without calling Pollack as a witness. For purposes of impeachment because of a prior inconsistent statement the defendant asked his witness Patrolman Seth Thomas "what those boys told you with reference to where they were standing at the time he shot." Upon objection by the State the defendant was not permitted to answer in the presence of the jury, but was permitted to whisper his answer to the court reporter, which was as follows: The court stated it excluded the evidence, because the witness could not tell which witness made the statement. Immediately prior to the asking of this question defendant's counsel had asked the witness Thomas several questions as to what Hopper or Pollack said to him, when Thomas could not say which one made the statement. The judge stated he thought the evidence was inadmissible for the reason that the witness could not say which boy made the statement, and then asked the solicitor for the State this question: "If I understand it correctly, you intend to put the other one on the stand, do you sir?" Solicitor Burney replied "Yes sir." Whereupon counsel for the defendant who was examining Thomas said: The court replied: "Of course you can." The defendant assigns the exclusion of this evidence as error.
In rebuttal the State called Pollack as a witness, and his testimony was Hopper and he were in the back seat of the car when Ferreri was shot. When the State rested after its rebuttal evidence, the defendant recalled Patrolman Thomas to the stand. Thomas was permitted to testify as follows: One or the other of the boys, as to which one told me I don't know, told me that the defendant was standing about 18 feet from the car in which Ferreri was and on its right hand side, when he shot Ferreri. It seems plain that, if defendant's counsel had asked Thomas when he was recalled to the stand, what one of the boys said in the presence of the other as to where they were when Ferreri was shot, the judge would have admitted it. For some reason defendant's counsel did not ask such a question, which he had asked Thomas before. Such being the facts before us, we hold that the exclusion of this evidence is not sufficient to justify a new trial.
After the argument to the jury of counsel for the private prosecution, the judge dismissed the jury from the courtroom, and made...
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