State v. Ellison

• Citation: 39 S.E.2d 824,226 N.C. 628
• Decision Date: 30 October 1946
• Docket Number: 290
• Parties: STATE v. ELLISON.
• Court: United States State Supreme Court of North Carolina

39 S.E.2d 824

226 N.C. 628

STATE v. ELLISON.

No. 290

Supreme Court of North Carolina

October 30, 1946

The defendant was convicted of murder in the second degree for the felonious slaying of one Howard Hockaday.

The pertinent evidence produced at the trial may be summarized as follows:

The defendant and deceased had for several years lived within a few hundred yards of each other in a small mountain community in Watauga County. A road separated their respective premises. About 6:00 P.M., October 15, 1945, the defendant shot the deceased three times with a shotgun. The State offered evidence tending to show that as result of wounds thus inflicted the deceased shortly thereafter died. About one hundred shot struck the chest and back of deceased. At the time of the shooting defendant, according to his own testimony, was standing on the porch of his home, 5 or 6 feet from the road, or in the road according to the State's evidence. The deceased was standing on his own land across the road, at a distance of 94 feet according to defendant's testimony, or 65 feet according to the State. It appeared that shortly before the shooting the deceased had left his home carrying a loaded rifle and had gone to the place where he was shot, in front of defendant's home for the purpose of warning defendant to keep his hogs off his land. Defendant testified deceased had threatened his life had shot at him twice, had earlier that afternoon gone to his home, inquired for him, and left word with defendant's wife that he would get him when he came home. Soon after defendant came home from his work deceased appeared across the road armed with a rifle. Defendant further testified that deceased called to him to come out, using insulting language and that as he stepped to the door he picked up his automatic shotgun, and as soon as deceased saw him he raised his rifle as if to shoot, and defendant shot three times as fast as he could. According to the State's evidence the deceased turned and ran, and fell 29 feet from the place where he received the first shot, and died a short time thereafter. At the point where deceased was struck by the shot his rifle was dropped or thrown down and was found with the barrel sticking up in the ground. There was no expert testimony as to cause of death. The defendant further testified that immediately after the shooting a State's witness approached him and asked if deceased was killed, and defendant said he did not know. Defendant then left and gave himself up to the officers.

During the defendant's cross-examination he was questioned about the rifle sticking up in the ground and as to when and by whom this was done. He replied that he did not know whether he saw the rifle sticking up or not. 'I don't know whether he (the deceased) stuck it there or not. I do not mean to say after I killed him he stuck the rifle up in the ground. If he did not stick the rifle up in the ground before I fired the last shot I suppose it was after he fell. I don't know after I shot him whether he stuck the rifle in the ground 29 feet away from where he fell. I don't know how far I would say he was from the rifle when he fell. * * * He fell once with the rifle. Main (a State's witness) said he stuck the rifle in the ground and kept going.'

The defendant noted exception to the following portion of the court's charge to the jury: 'Now, gentlemen of the jury, the defendant in this case has interposed a plea of self-defense. He admitted the killing with a deadly weapon both while upon the stand testifying in his own behalf and through his counsel when they argued the case to you in his behalf. He admits that he killed the deceased with a deadly weapon, to-wit, a shotgun. Now when this is done, there are certain legal principles which you must consider when arriving at your verdict. * * * And the burden then rests upon the defendant to show not by the preponderance of the evidence, and not beyond a reasonable doubt, but simply to the satisfaction of the jury such facts and circumstances as will reduce or mitigate the offense from murder in the second degree to manslaughter or excuse it altogether, and this he must do upon evidence introduced in his own behalf and all the evidence in the case.'

The jury returned verdict of guilty of murder in the second degree, and from judgment imposing prison sentence, the defendant appealed.

Harry McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes, and Ralph M. Moody, Asst. Attys. Gen., for the State.

Trivette & Holshouser and Lovill & Zimmerman, all of Boone, for defendant.

DEVIN Justice.

The principal assignment of error brought forward in defendant's appeal relates to the judge's charge to the jury. The instruction of which he complains was bottomed upon the view that the defendant had admitted that he killed the deceased with a deadly weapon. The judge so stated to the jury, and instructed them to consider the case from the standpoint of such admission as constituting a pre-determined fact. If the court correctly interpreted the testimony of the defendant, the exception is without merit.

The...