State v. Franklin
| Decision Date | 13 October 1948 |
| Docket Number | 217 |
| Citation | 49 S.E.2d 621,229 N.C. 336 |
| Parties | STATE v. FRANKLIN. |
| Court | North Carolina Supreme Court |
Criminal action tried upon indictment charging the defendant with the felonious slaying of one Christine Franklin.
The State's evidence tends to show that on 14 June, 1947, the defendant, a first cousin of the deceased, got into a quarrel with some of the members of his uncle's family. The father of the deceased, Deck Franklin, and the father of the defendant are brothers and live about 100 yards apart. Louis Franklin and the defendant had been to Grindstaff's store to get provisions on the day of the fatal shooting, and while on the trip each drank some beer. Thereafter the defendant tried to get Louis Franklin to go with him to get some more beer. Several members of Deck Franklin's family protested. Louis Franklin's sister Cora, went to the home of defendant for the purpose of persuading him not to take her brother to get any more beer. When Cora Franklin got part of the way up the steps of defendant's home, the defendant struck her with a chair and knocked her down the steps. Deck Franklin and his family saw the defendant strike Cora and all of them went to the road. The defendant got his shotgun and a bag of shells loaded the gun, rested the barrel on the bannister and fired killing the deceased. He afterwards told the Sheriff of Mitchell County that he was shooting at Deck Franklin and not at Christine, who was only 13 years of age.
The defendant testified that before he got his gun, Deck Franklin, his wife Sibyl, and two of his children, Eva and Louis, were approaching his home, 'swearing they would kill him when they got there'; that when he got his gun and returned to the front porch Louis was coming up the steps and grabbed hold of the gun and Sibyl got hold of him before the gun fired; that he was not trying to shoot anybody.
Verdict: Guilty of manslaughter. Judgment: Imprisonment in the State's Prison at hard labor for not less than seven nor more than ten years.
The defendant appeals, assigning error.
Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.
Proctor & Dameron, of Marion, Charles Hutchins, of Burnsville, and W. C. Berry, of Bakersville, for defendant.
The defendant presents for review eight assignments of error based on exceptions to his Honor's charge. The first of these is directed to the following: 'As I have charged you heretofore, where an intentional killing is admitted by the defendant or is established by the State beyond a reasonable doubt, the law presumes that it was unlawful and that it was done with malice, and nothing else appearing, the defendant would be guilty of murder in the second degree, or manslaughter, as the jury may find the facts to be.'
The defendant insists that the presumption of malice does not arise from an intentional killing, but only from the intentional killing of a human being with a deadly weapon citing State v. Clark, 225 N.C. 52, 33 S.E.2d 245; State v. Bright, 215 N.C. 537, 2 S.E.2d 541; State v. Hawkins, 214 N.C. 326, 199 S.E. 284, and he further contends this instruction is erroneous because it is tantamount to saying 'any intentional killing is unlawful' We concede that this instruction, if standing alone, would be objectionable. We think, however, the exception is untenable, because in his charge immediately preceding the portion excepted to, the trial judge said: 'Where it is admitted or established by the evidence beyond a reasonable doubt that the defendant intentionally killed the deceased with a deadly weapon, the law raises two presumptions against the defendant, first that the killing was unlawful, and, second, that it was done with malice, and an unlawful killing with malice is murder in...
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