State v. Duboise

• Decision Date: 10 June 1971
• Docket Number: No. 4,4
• Citation: 279 N.C. 73,181 S.E.2d 393
• Parties: STATE of North Carolina v. Leo DUBOISE.
• Court: North Carolina Supreme Court

Page 393

181 S.E.2d 393

279 N.C. 73

STATE of North Carolina v. Leo DUBOISE.

No. 4.

Supreme Court of North Carolina.

June 10, 1971.

Charles H. Yarborough, Jr., Louisburg, and Jacob W. Todd, Raleigh, for defendant appellant.

Robert Morgan, Atty. Gen. by Edward L. Eatman, Jr., Staff Atty., Raleigh, for the State.

HUSKINS, Justice.

Defendant assigns as error that the trial court failed to instruct the jury on the issue of manslaughter and limited the jury in its deliberations to one of three verdicts, to wit: murder in the first degree (with or without recommendation as to punishment), murder in the second degree, and not guilty.

Where it is permissible under the bill of indictment to convict defendant of a lesser degree of the crime charged, And there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. State v. Robinson, 188 N.C. 784, 125 S.E. 617 (1924); State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). Error in failing to submit the question of defendant's guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense chrged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees Arising on the evidence had been correctly presented in the court's charge. State v. Davis, 242 N.C. 476, 87 S.E.2d 906 (1955); State v. Childress, 228 N.C. 208, 45 S.E.2d 42 (1947).

The foregoing principle applies only in those cases where there is evidence of guilt of the lesser degree. State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). Where all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree, the principle does not apply and the court correctly refuses to charge on the Unsupported lesser degree. State v. Manning, 221 N.C. 70, 18 S.E.2d 821 (1942); State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34 (1944); State v. Brown, 227 N.C. 383, 42 S.E.2d 402 (1947); State v. Bell, 228 N.C. 659, 46 S.E.2d 834 (1948). Compare State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969), which discusses the law in this and other jurisdictions when there Is evidence sufficient to require submission of manslaughter and the jury convicts of murder in the first degree.

Defendant does not contend on this appeal that the element of malice is not shown by the evidence. Rather, his contention is that the evidence as a whole gives rise to a permissible inference that he did not Intentionally kill the deceased. Therefore, defendant argues, the jury could have found him guilty of manslaughter and, on authority of State v. McNeill, 229 N.C. 377, 49 S.E.2d 733 (1948), the judge was required to so instruct the jury.

The record in this case is barren of any evidence of manslaughter. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Baldwin, 152 N.C. 822, 68 S.E. 148 (1910); State v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967). Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. 14--17; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950).

The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions that (1) the killing was unlawful and (2) done with malice, and an unlawful killing with malice is murder in the second degree. Here, all the evidence tends to show that defendant stubbornly continued over a period of hours to curse the deceased and to assault his helpless victim time after time with various deadly weapons while Willa Dean Simmons was begging him to cease and desist. By these persistent assaults without the slightest provocation he inflicted mortal wounds proximately causing the death of his victim. This evidence affords no basis upon which defendant could be found guilty of manslaughter. Upon this evidence the presumptions arose, and it was then incumbent upon defendant, in keeping with legal principles too well settled to require repetition, to satisfy the jury of the truth of facts which would mitigate the killing to manslaughter or excuse it altogether. He offered absolutely nothing in mitigation of his crime.

In the following language from State v. Gordon, 241 N.C. 356, 85 S.E.2d 322 (1955), Justice Bobbitt (now Chief Justice) wrote the applicable law:

'When the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree. In State v. Gregory, 203 N.C. 528, 166 S.E. 387 (1932), where the defense was that an Accidental discharge of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an Intentional killing with a deadly weapon; and since the Gregory case it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression, Intentional killing, is not used in the sense that a specific intent To kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant Intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. (Citations omitted.) A specific intent To kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions.'

Accord State v. Barber, 270 N.C. 222, 154 S.E.2d 104 (1967); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Winford, N.C., 181 S.E.2d 423 (1971).

State v. McNeill, supra, 229 N.C. 377, 49 S.E.2d 733, relied on by defendant, was decided prior to decision in State v. Gordon, supra. In exact expressions therein contrary to the legal principles laid down in Gordon are disapproved and may not be considered authoritative on the facts disclosed by the evidence in this case.

It is clear that, upon the State's evidence, defendant was guilty of at least murder in the second degree. The additional ingredient of premeditation and deliberation necessary in first degree murder may be inferred from the vicious and brutal circumstances of the homicide, E.g., lack of provocation, threats before and during the occurrence, infliction of lethal blows after the victim had been felled and rendered helpless, and conduct of the defendant before and after the killing. State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970); State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970); State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969); State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961); State v. Stanley, 227 N.C. 650, 44 S.E.2d 196 (1947). Moreover, when a homicide is perpetrated by means of torture, as here, premeditation and deliberation are presumed and defendant is guilty of murder in the first degree. State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322 (1944). 'A murder which shall be perpetrated by means of * * * torture * * * shall be deemed to be murder in the first degree * * *.' G.S. 14--17.

For the reasons stated, we hold that the trial court correctly refused to submit the issue...