State v. Fowler, 333

• Decision Date: 02 November 1966
• Docket Number: No. 333,333
• Citation: 150 S.E.2d 731,268 N.C. 430
• Court: North Carolina Supreme Court
• Parties: STATE v. Warner FOWLER, Alias Johnny Ringo Graham.

Page 731

150 S.E.2d 731

268 N.C. 430

STATE v. Warner FOWLER, Alias Johnny Ringo Graham.

No. 333.

Supreme Court of North Carolina.

Nov. 2, 1966.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. James F. Bullock, and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Herbert B. Hulse and W. Harrell Everett, Jr., Goldsboro, for defendant.

BRANCH, Justice.

Defendant contends and attempts to show by his evidence that the killing was accidental. He assigns as error that portion of the judge's charge as to accidental killing, in which the court stated:

'And if a defendant who has intentionally killed another with a deadly weapon would rebut the presumption arising from such showing or admission, he must establish to the satisfaction of the jury the legal provocation which would take from the crime the element of malice and thus reduce it to manslaughter, or which will excuse it altogether on the ground of self-defense, unavoidable accident, misadventure or other defense recognized by the law that would render it excusable homicide.'

Here the learned trial judge apparently by inadvertence classified defendant's assertion of accidental killing with the defenses of self-defense or killing in the heat of passion, both affirmative defenses which a defendant must prove to the satisfaction of the jury. State v. Beachum, 220 N.C. 531, 17 S.E.2d 674. A very lucid statement of the law relative to burden of proof in cases where defendant asserts that a killing was accidental is found in State v. Phillips, 264 N.C. 508, 142 S.E.2d 337, where Sharp, J., speaking for the Court, said:

'A defendant's assertion that a killing with a deadly weapon was accidental is in no sense an affirmative defense shifting the burden of proof to him to exculpate himself from a charge of murder. On the contrary, it is merely a denial that the defendant has committed the crime, and the burden remains on the State to prove an intentional killing, an essential element of the crime of murder, before any presumption arises against the defendant. (Of course, accident will be no defense to a homicide committed in the perpetration of or in the attempt to perpetrate a felony. G.S. § 14--17.) To hold otherwise would impose conflicting burdens of proof on the same issue and create two irreconcilable rules pertaining to the same matter. The charge here, in effect, recognizes an intentional accident--an impossibility. In accident 'the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime.' 4 Blackstone, Commentaries 26 (12th ed., Christian's, London, 1795). Manifestly, if the State has satisfied the jury beyond a reasonable doubt that the shooting was intentional, a defendant could not thereafter establish to the satisfaction of the jury that it was accidental. In addition to posing a practical and a logical impossibility, the charge robbed defendant of the presumption of innocence and the benefit of the requirement that the State prove each and every element of the offense. State v. Dallas, 253 N.C. 568, 117 S.E.2d 415; State v. Cephus, 239 N.C. 521, 80 S.E.2d 147.'

"The plea of accidental homicide, if indeed it can be properly called a plea, is certainly not an affirmative defense, and therefore does not impose the burden of proof upon the defendant, because the state cannot ask for a conviction unless it proves that the killing was done with criminal intent.' State v. Ferguson, 91 S.C. 235, 244, 74 S.E. 502, 505. 'It is the duty of the state to allege and prove that the killing, though done with a deadly weapon, was intentional or willful. * * * (T)he claim that the killing was accidental goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable doubt.' State v. Cross, 42 W.Va. 253, 258, 24 S.E. 996, 997. Accord, State v. Matheson, 130 Iowa 440, 103 N.W. 137; State v. Budge, 126 Me. 223, 137 A. 244, 53 A.L.R. 241; State v. Hazlett, 16 N.D. 426, 113 N.W. 374; State v. Lindsey, 68 S.C. 276, 47 S.E. 389; Hardin v. State, 57 Tex.Crim.R. 401, 123 S.W. 613; 26 Am.Jur., Homicide §§ 106, 290 (1940); 40 C.J.S. Homicide § 196 (1944).'

Hence, the defendant is not required to prove 'to the satisfaction of the jury' that the killing...