State v. Foust, 727

• Decision Date: 11 January 1963
• Docket Number: No. 727,727
• Parties: STATE, v. James Monroe FOUST.
• Court: North Carolina Supreme Court

Page 889

128 S.E.2d 889

258 N.C. 453

STATE, v. James Monroe FOUST.

No. 727

Supreme Court of North Carolina.

Jan. 11, 1963

T. W. Bruton, Atty, Gen., and James F. Bullock, Asst. Atty. Gen., for the State.

Clarence Ross and B. F. Wood, Graham, for defendant appellant.

PARKER, Justice.

The State's evidence presents these facts:

On the morning of 5 January 1962 defendant, James Monroe Foust, a boy about sixteen years of age, had been hunting in the woods near the Bull home with a 22-410 combination rifle and shotgun, with the rifle barrel on top and the shotgun barrel on the bottom. Sylvia Elaine Bull, a sixteen-year-old girl with whom he had been going, gave him this rifle and gun combination as a 1961 Christmas present. About noon he went to the Bull home. He knocked, was admitted by Tomaka Bull, and went into the 'den-kitchen' where Sylvia was asleep on a little bed or cot. She had on a white blouse and blue slacks, but no stockings or shose. He waked her up, and took a seat on the bed beside her. Sylvia, Tomaka, and defendant were the only persons in the house. A radio by the bed was playing loud.

Tomaka was in the kitchen washing dishes, and could not see Sylvia and defendant from where she was. She heard them talking, but did not know what they said. She heard no fuss between them. About half an hour after defendant's arrival, while she was trying to get milk out of the ice box, she heard a gun fire. She turned around, saw blood and a gun lying across the bed beside Sylvia, but did not see the defendant. She ran out of the house to a neighbor's house across the street.

In response to a call Lewis Strickland, Jr., coroner of Alamance County, arrived at the Bull home about 1:20 p. m. Upon arrival he saw defendant in the front yard, who told him 'a girl had been shot * * * he did it, but that it was an accident,' and he carried him to where the girl was. The coroner found Sylvia Elaine Bull in the 'den-kitchen' lying dead on a little bed. She was stretched out full length, with her hands folded across her chest, cover partially on her, and with a quantity of blood around her chin. She had a wound about one-fourth of an inch wide and about three-eighths of an inch long in her chin about halfway between her right ear and the right corner of her mouth. Around the wound was a powder burn area about two inches square. There was a cigarette between her index and middle fingers which had burned into the flesh. He found the gun in the living room next to the room where Sylvia's body was. There was an empty shell in the shotgun barrel. The rifle barrel had an unfired cartridge in it. The defendant said 'he had moved the gun himself from the floor beside the cot to the position in which I found it.'

The coroner testified that the defendant told him this is what occurred when he entered the Bull home: 'He went to where Sylvia was asleep on the little bed. That he woke her up and they started cutting up playfully, and she grabbed the gun and he said that he had the gun across his knees, and that after they began to cut up, you know, play, that she grabbed the gun and she jerked it back, and if I recall correctly, the first time this happened nothing happened, and they continued playing and she grabbed the gun again and he jerked it back and he said it went off, and he went to call the officers. * * * He later stated at the police department in Gibsonville that he thought the gun was unloaded when he went into the house. He said he did not know how the gun fired.'

M. W. Millikan, chief of police of Gibsonville, testified on direct examination as follows: 'I asked [defendant] what happened and he stated he had been out hunting that morning and come into the house and sat down on the side of the bed by Sylvia and got to playing or picking at one another, as he put it, and she grabbed for the gun on two different occasions and the second time it went off. I asked him if he had shot the gun previously that day and he said, as I recall, that he had shot the gun once or twice. * * * Defendant stated that the girl was shot with the 410 gauge barrel, and that he had shot this barrel at least twice that morning. * * * He said he thought he unloaded it.' Defendant also told Millikan the following: 'He was sitting on the bed with her head to his left and that he was sitting about half ways of the bed with the gun laying on his knees, about like this (indicating). He said he was sitting right close to her and that she took hold of the gun--the first time she grabbed it under the breach part here, and he said he got it away from her, and she got it again near the end of the barrel, and that is when the gun went off.'

The defendant told Millikan 'he had been dating Sylvia for a few months, and that she had started going with another boy by the name of Junior Atkinson.' Millikan asked him if he was mad about this, and he replied 'he wasn't mad, but he did not like it.' On cross-examination Millikan testified, 'he told me that he did not move the girl in any manner, but that he opened her eye.'

Marie Bull Wyrick, a sister of Sylvia, in response to a call went home, and found there the coroner, Millikan, the defendant, and some neighbors. She testified: 'I asked James what happened and he said he come in from hunting and he sat down on the bed beside Sylvia and said Sylvia tickled him and he moved his (sic) like that and hit the gun and it went off, and I said, 'What, was the gun loaded?' I said, 'What did you go in the house with a loaded gun for,' and he said that he unloaded the gun before he went in.'

Mrs. Roy Bull, mother of Sylvia, testified in substance: She has known defendant since he was a little boy: his family lived in their community. Sylvia would spend several days at the time at the home of defendant's mother, would come home, and go back again. Defendant and Sylvia had been dating for about six months. Sylvia dated the Atkinson boy after Christmas. Defendant occasionally stayed with his relatives across the street from their home.

Allen Barbee testified for the State in substance: He lives near the Bull home. Defendant and Sylvia visited his home often. Sylvia had given defendant a gun for Christmas. She wanted to buy it back, and defendant said 'he would see her dead before she would get it back.' They argued with each other sometime as kids will. They argued about her going with another boy. He said, 'that if he couldn't have her nobody else would.'

Matthew Atkinson, Jr., a witness for the State, testified he and Bobby Jean had double dated with Sylvia and defendant in his car. On one occasion Sylvia and defendant were sitting in the back seat of his car in front of Bobby Jean's home. He testified on cross-examination: 'They [defendant and Sylvia] were not arguing, just talking, and out of the blue sky he said, 'if you go with anybody else, I will kill you.' I did not know she was going with anyone else at the time. It was just sort of sweetheart talk.'

Defendant assigns as errors that Chief Millikan was permitted by the court, over his objections and exceptions, to testify as to experiments he made with the gun whose firing killed Sylvia. He testified in substance: The gun had been in his possession continuously since the death of Sylvia. The gun could not be fired by pulling the hammer part way back and turning it loose without pulling the trigger. The hammer had to be pulled back 'in gauge position' before he could fire it. The 'safety gauge' makes it necessary that the hammer be pulled back all the way. For the gun to fire it had to be cocked and the trigger pulled. He used shells of the same make as the empty shell he found in the 410 shotgun barrel. He has had no instruction or schooling to qualify as an expert in the mechanism of a gun of this type. He does not know the pressure needed to cause the shell to explode.

There is no other evidence in the record as to how the safety device on this gun operates. There is no evidence in the record as to whether the safety device on the gun was on or off when it fired and killed Sylvia, or as to whether at that time it was cocked or not. There is no evidence in the record that when Millikan made his experiments the gun was in substantially the same condition as on the day Sylvia was killed. Defendant's defense is that the shooting of the gun resulting in Sylvia's death was by accident or misadventure. In our opinion the experimental evidence given by Millikan should have been rejected, because it does not appear from the evidence before us that his experiments were carried out under substantially similar circumstances to those which surrounded the firing of the gun when Sylvia was killed. State v. Phillips, 228 N.C. 595, 46 S.E.2d 720.

Defendant offered no evidence.

Defendant assigns as error the denial by the court of his motion for a judgment of involuntary nonsuit as to the charge against him of murder in the second degree. The court in its charge stated that the jury could return one of three verdicts: Guilty of murder in the second degree, Guilty of involuntary manslaughter, or Not Guilty. The court in its charge instructed the jury in substance that if they found from the evidence, and beyond a reasonable doubt, that on 5 January 1962 defendant feloniously and intentionally shot and killed Sylvia Elaine Bull, and that he did so with malice, as that term had been defined to them, it would be their duty to return a verdict of guilty of murder in the second...