State v. Faust

• Decision Date: 01 March 1961
• Docket Number: No. 220,220
• Citation: 118 S.E.2d 769,254 N.C. 101
• Parties: , 96 A.L.R.2d 1422 STATE, v. Mellott FAUST.
• Court: North Carolina Supreme Court

Page 769

118 S.E.2d 769

254 N.C. 101, 96 A.L.R.2d 1422

STATE, v. Mellott FAUST.

No. 220

Supreme Court of North Carolina.

March 1, 1961

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

Charles V. Bell, Charlotte, and Peter H. Bell, Plymouth, for defendant.

MOORE, Justice.

Defendant assigns as error the refusal of the trial court to sustain his motion 'for judgment as of nonsuit upon the charge of murder in the first degree.' Defendant contends that evidence of premeditation and deliberation is lacking and that the evidence adduced at the trial did not justify a submission of the case to the jury on the charge of first degree murder.

Upon a motion for nonsuit in a criminal prosecution, the evidence must be considered in the light most favorable to the State, and the State is entitled to the benefit of every reasonable inference which may fairly be drawn from the evidence. Contradictions and discrepancies in the testimony of State's witnesses are to be resolved by the jury. State v. Simpson, 244 N.C. 325, 331, 93 S.E.2d 425; State v. Kelly, 243 N.C. 177, 180, 90 S.E.2d 241. See also the many cases cited in Strong: N. C. Index, Vol. 1, Criminal Law, § 99, footnote 800, p. 769.

Thirteen witnesses testified for the State. Seven gave eyewitness accounts of the occurrence. The testimony, in its aspect most favorable to the State, tends to show the following facts:

The deceased, Johnny R. Annas, was a police officer of the City of Charlotte. He and police officer Bruce were on duty on Saturday night, 21 May 1960, and were patrolling the streets of Charlotte in a police car. Both were in uniform. When they arrived at the intersection of Church and Summitt Streets they observed two boys fighting with knives. The combatants were Charles and John Smith, cousins. The policemen stopped at the intersection and the boys ran. The officers pursued and caught Charles, disarmed him and brought him back to the intersection. They discovered that he had been cut and were conducting him to the car for the purpose of taking him to the hospital for treatment. John returned to the scene and started taking off his shirt. Officer Bruce took him by the arm and he started struggling to free himself. A crowd began to gather and ultimately there were 150 to 200 persons at the scene. Annas attempted to help Bruce take John into custody. John began to kick and swing his arms. Bruce took hold of John's leg. The officers pulled John toward the car. Three women came up, screaming and 'hollering.' The crowd closed in. Annas went to the car to telephone for help. The three women began hitting Bruce and one of them struck him in the face. Bruce drew his gun but the women continued to hit him. John was on the ground and Bruce was holding him down with his left hand. Annas returned and the crowd moved back. Bruce put his gun back in the holster. Annas took hold of John and they again started to the car with him. A woman was still hitting Bruce. Bruce took hold of her and began pulling her toward the car. A number of people grabbed Bruce and were fighting him. His arms were pinned to his sides. Defendant had been standing on the sidewalk talking to three women. Bruce heard his holster unsnap and tried to reach for and recover his gun but was prevented by the persons holding him. He saw defendant with his (Bruce's) pistol. A woman said: 'I always hated them * * * we ought to kill him.' Defendant was heard to say: 'Kill that * * * son of a bitch.' Defendant stepped back, holding the gun down beside his right leg. Bruce was still being held and beaten. Annas started back toward Bruce, but did not draw his gun. When Annas was about fifteen feet from Bruce, defendant raised the pistol and fired and Annas fell on his back. Three men pulled him to the sidewalk. The crowd freed Bruce and he ducked into the crowd and ran to the corner of a nearby house. Defendant walked to Annas, got right over him, and moved around him firing five shots into his body. Defendant reached down and took Annas' pistol and looked toward the spot Bruce had been. He then left the scene carrying the guns. As he left he shot out a street light. He threw the guns in a vacant lot. Next morning he surrendered at police headquarters. He is twenty-one years old. Upon examination it was found that six bullets had entered Annas' body. One entered behind the right ear and lodged in the brain. Another entered the right cheek opposite the corner of the mouth. There was a wound in the right shoulder. A bullet entered the right chest and passed through the right lung, heart and left lung. One entered above the left chest. And there was a bullet wound in the lower abdomen.

The general principles of law applicable here are well stated in the opinion delivered by Winborne, J. (now C. J.) in State v. Bowser, 214 N.C. 249, 199 S.E. 31, 33, as follows:

'The exceptive assignment principally pressed on this appeal is the refusal of the court to allow defendant's motion for judgment as of nonsuit on the first degree murder charge made in compliance with the statute. C.S., 4643 (G.S. § 15-173). The motion challenges the sufficiency of the evidence to show premeditation and deliberation beyond a reasonable doubt. State v. Bittings, 206 N.C. 798, 175 S.E. 299, and cases cited.

'It is pertinent, therefore, to refer to principles applicable to the case in hand.

'Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. C.S., 4200 (G.S. § 14-17). State v. Payne, 213 N.C. 719, 197 S.E. 573, and cases cited.

'The intentional killing of a human being with a deadly weapon implies malice and, if nothing else appears, constitutes murder in the second degree. State v. Payne, supra, and cases cited.

"'The additional elements of premeditation and deliberation, necessary to constitute murder in the first degree, are not presumed from a killing with a deadly weapon. They must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree can be rendered against the prisoner. State v. Miller, 197 N.C. 445, 149 S.E. 590;" State v. Payne, supra, 197 S.E. at page 579.

"'Premeditation means 'thought beforehand' for some length of time, however short. State v. Benson, supra [183 N.C. 795, 111 S.E. 869, at page 871]; State v. McClure, [166 N.C. 321, 81 S.E. 458];" State v. Payne, supra, 197 S.E. page 579, and cases cited.

""Deliberation means that the act is done in cool state of blood. It does not mean brooding over it or reflecting upon it for a week, a day or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. State v. Benson, supra [183 N.C. 795, 111 S.E. 869, 871]." State v. Payne, supra, 197 S.E. 579.

"Evidence of threats are admissible and may be offered as tending to show premeditation and deliberation, and previous express malice, which are necessary to convict of murder in the first degree.' State v. Payne, supra, 197 S.E. 577, and cases cited.

"'General threats to kill not shown to have any reference to deceased are not admissible in evidence; but a threat to kill or injure someone not definitely designated is admissible in evidence, where other facts adduced give individuation to it. State v. Shouse, supra [166 N.C. 306, 81 S.E. 333, 334]." State v. Payne, supra.

''The manner of the killing by [defendant], his acts and conduct attending its commission, and his declarations immediately connected therewith, were evidence of express malice.' State v. Robertson, 166 N.C. 356, 81 S.E. 689, 692. State v. Cox, 153 N.C. 638, 69 S.E. 419.

"In determining the question of premeditation and deliberation, it is proper for the jury to take into consideration the conduct of the prisoner, before and after, as well as at the time of, the homicide, and all attending the circumstances.' Stacy, C. J., in State v. Evans, 198 N.C. 82, 150 S.E. 678, 679.'

It is said in State v. Watson, 222 N.C. 672, 673, 24 S.E.2d 540, 542, that 'premeditation and deliberation are not usually susceptible of direct proof and are therefore, susceptible of proof by circumstances from which the facts sought to be proven may be inferred. That these essential elements of murder in the first degree may be proven by circumstantial evidence has been repeatedly held by this court. (Citing cases).'

Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: Want of provocation on the part of deceased. State v. Matheson, 225 N.C. 109, 111, 33 S.E.2d 590; State v. Hammonds, 216 N.C. 67, 75, 3 S.E.2d 439; State v. Buffkin, 209 N.C. 117, 126, 183 S.E. 543. The conduct of defendant before and after the killing. State v. Lamm, 232 N.C. 402, 406, 61 S.E.2d 188; State v. Chavis, 231 N.C. 307, 311, 56 S.E.2d 678; State v. Harris, 223 N.C. 697, 701, 28 S.E.2d 232. Threats and declarations of defendant before and during the course of the occurrence giving rise to the death of deceased. State v. Dockery, 238 N.C. 222, 224, 77 S.E.2d 664; State v. Hudson, 218 N.C. 219, 230, 10 S.E. 2d 730; State v. Hawkins, 214 N.C. 326, 331, 199 S.E. 284; State v. Bowser, supra. The dealing of lethal blows after deceased has been felled and rendered helpless. State v. Artis, 227 N.C. 371, 373, 42 S.E. 2d 409; State v. Taylor, 213 N.C. 521, 523, 196 S.E. 832.

Defendant contends that all of the evidence tends to show that he acted under the influence of passion suddenly aroused while violent passion had dethroned his reason, and not in a cool state of blood. He quotes from Black's Law Dictionary the following definition of 'cool blood': 'Calmness or...