State v. Freeman, 14

• Decision Date: 19 November 1969
• Docket Number: No. 14,14
• Citation: 275 N.C. 662,170 S.E.2d 461
• Parties: STATE of North Carolina v. Joe FREEMAN.
• Court: North Carolina Supreme Court

Page 461

170 S.E.2d 461

275 N.C. 662

STATE of North Carolina v. Joe FREEMAN.

No. 14.

Supreme Court of North Carolina.

Nov. 19, 1969.

Henderson & Henderson and William A. Vaden, Raleigh, for defendant appellant.

SHARP, Justice.

Defendant asserts, Inter alia, that he is entitled to a new trial because (1) the judge erred in his charge with reference to the Quantum of proof required of defendant in order to reduce murder in the second degree to manslaughter or to establish the defense of self-defense and (2) the judge failed to submit to the jury the issue of defendant's guilt of involuntary manslaughter.

The judge explained to the jury that if defendant intentionally shot Sawyer with a pistol and thereby caused his death, the law presumed that the killing was unlawful and done with malice and, nothing else appearing, defendant would be guilty of murder in the second degree; that if defendant would rebut the presumptions arising from such a killing 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 excuse the killing altogether on the grounds of self-defense. The judge then contrasted the State's burden, proof beyond a reasonable doubt, with defendant's burden, proof to the satisfaction of the jury. After explaining that proof beyond a reasonable doubt is the highest Quantum of proof known to our law and that such intensity is not required of a defendant, the judge charged:

'But the defendant does not meet the requirements of law when he satisfies the jury merely by the greater weight of the evidence of the truth of the facts he relies on in mitigation, justification or excuse. By the greater weight of the evidence means simply evidence that, when compared with other evidence, is more convincing or evidence that carries greater assurance than that which is offered in opposition. And when the term 'to the satisfaction of the jury,' is used it is considered to bear a stronger intent of proof than by the greater weight of the evidence or preponderance of the evidence.

'So to prove facts to the satisfaction of the jury requires a higher degree of proof and signifies something more than belief founded on the greater weight of the evidence but does not require as high a degree or as strong, intensive proof as beyond a reasonable doubt.'

Defendant excepted to the foregoing portion of the charge, which is clearly erroneous. Instructions in practically identical language have been held to be prejudicial error in State v. Fowler, 268 N.C. 430, 150 S.E.2d 731; State v. Matthews, 263 N.C. 95, 138 S.E.2d 819; State v. Prince, 223 N.C. 392, 26 S.E.2d 875, and also in State v. Calloway, 1 N.C.App. 150, 160 S.E.2d 501. These cases enunciate and reiterate the rule--established in our law for over one hundred years, State v. Willis, 63 N.C. 26 (1868)--that when the burden rests upon an accused to establish an affirmative defense or to rebut the presumption of malice which the evidence has raised against him, the Quantum of proof is to the satisfaction of the jury--not by the greater weight of the evidence nor beyond a reasonable doubt--But simply to the satisfaction of the jury. Even proof by the greater weight of the evidence--a bare preponderance of the proof--may be sufficient to satisfy the jury, and the jury alone determines by what evidence it is satisfied. State v. Prince, Supra.

If there be evidence sufficient to establish an affirmative defense or to rebut the presumptions which arises against the defendant when a killing results from his intentional use of a deadly weapon, '(T)he accepted formula And the one that should be used if risk of error is to be avoided, is that the defendant has the burden of proving his defense (or mitigation) 'to the satisfaction of the jury--not by the greater weight of the evidence nor beyond a reasonable doubt--but simply to the satisfaction of the jury. " Stansbury, N.C. Evidence § 214 (2d Ed.1963). (Emphasis added.)

Erroneous though the challenged instruction was, it does not entitle defendant to a new trial for, demonstrably, it was harmless. First, the verdict of murder in the first degree established that defendant had unlawfully killed Sawyer with malice, premeditation, and deliberation. State v. Moore, 275 N.C. 198, 166 S.E.2d 652. Defendant assigns no error in the charge as it related to murder in the first or second degree. The error related to the Quantum of proof required to reduce second-degree murder to manslaughter or to excuse the killing on the ground of self-defense. 'Prejudice could not come from such a charge, if erroneous, unless defendant had been convicted of murder in the second degree, and there had been evidence of facts or circumstances in mitigation or excuse of the killing.' State v. Lipscomb, 134 N.C. 689, 697, 47 S.E. 44, 46. Ordinarily, when the jury is instructed that it may find defendant guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty, and the verdict is guilty of murder in the second degree, an error in the charge on manslaughter will require a new trial. In such event it cannot be known whether the verdict would have been manslaughter if the jury had been properly instructed. But where, as here, the jury was properly instructed as to both degrees of murder and yet found defendant guilty of murder in the first degree rather than the second degree, it is clear that error in the charge on manslaughter was harmless. In State v. Munn, 134 N.C. 680, 47 S.E. 15, the jury found 'that beyond all reasonable doubt the prisoner slew the deceased willfully, deliberately, and with premeditation, and was guilty of murder in the first degree. The state (had) thus satisfied them of facts raising the crime above murder in the second degree, which only was presumed from the (intentional) killing with a deadly weapon. If there were error in the charge as to mitigation below murder in the second degree, it was therefore immaterial error.' Id. at 682, 47 S.E. at 16. Similarly, when the jury in this case became convinced beyond a reasonable doubt that defendant, after having decided to take Sawyer's life, intentionally and unlawfully shot and killed him, the Quantum of proof by which a defendant is required to rebut the presumption of malice which arises when death results from the intentional use of a deadly weapon becomes academic and irrelevant.

Second, defendant was not entitled to an instruction upon self-defense or mitigation. In State v. Utley, 132 N.C. 1022, 43 S.E. 820, the defendant was convicted of murder in the second degree. The judge charged the jury that the defendant was required to prove mitigating circumstances beyond a reasonable doubt. The court said that, unless it was harmless, this error would require a new trial and it was not harmless If 'in any aspect of the case the jury could have rendered a verdict of manslaughter under the law.' Id. at 1024, 43 S.E. at 821. Looking at the evidence in the light most favorable to the defendant, the court held there was no such evidence and affirmed the verdict.

In this case the evidence is insufficient to show that defendant slew Sawyer in the heat of passion engendered by provocation which the law deems adequate to depose reason. State v. Merrick, 171...