State v. Gregory

• Decision Date: 16 November 1932
• Docket Number: 392.
• Parties: STATE v. GREGORY.
• Court: North Carolina Supreme Court

166 S.E. 387

203 N.C. 528

STATE v. GREGORY.

No. 392.

Supreme Court of North Carolina

November 16, 1932

Appeal from Superior Court, Guilford County; Shaw, Emergency Judge.

James H. Gregory was convicted of manslaughter, and he appeals.

New trial.

Where law presumes malice from use of deadly weapon in killing defendant has burden to establish facts justifying act unless such facts arise out of evidence against him.

Criminal prosecution tried upon an indictment charging the defendant with the murder of his son, Tyro Gregory.

When the case was called for trial, the solicitor announced that the state would not insist upon a verdict of murder in the first degree, but would ask for a verdict of murder in the second degree or manslaughter as the evidence might disclose.

The record discloses that, in consequence of a telephone call the sheriff of Guilford county went to the home of the defendant on July 13, 1931. He found the defendant in the corner of the yard, "just walking around with some other gentleman." When the sheriff drove up, the defendant came to his car. He seemed to be under the influence of whisky or a dope of some kind. In answer to the sheriff's inquiry as to what was the trouble, the defendant replied: "I am not going to tell any lie about it. We had some trouble out here and my boy would not mind me and I just went in the house and got my shotgun and got two shells and stepped out on the back porch and told him I was going to be the boss around there and when I went to put the shells in the gun and breech it up the gun went off and killed him, or shot him."

The deceased in a dying declaration stated that his father accidentally shot him "while fooling with an old gun. It was purely accidental." He later repeated, while in the hospital: "I want it understood that it was purely an accident."

The defendant testified that he could not recall his conversation with the sheriff. "It scared me pretty nigh to death when I shot that boy." Tyro had been plowing that day; he had just come in from the field and was sitting on the steps washing his feet; it was about 5:30 or 6 o'clock. "I came out of the door with the gun intending to shoot a rabbit; as I walked down the steps, I put the two shells in the gun, I didn't even look at the boy, not thinking anything, and when I snapped it back it fired and the boy hollered and said he was shot."

The following instruction forms the basis of defendant's seventh exception: "Where one kills another with a deadly weapon, nothing else appearing, the law presumes that the killing is a case of murder in the second degree, that is, the law presumes that such killing, nothing else appearing, was done with some motive sufficiently bad to make it murder in the second degree, even though the State may not be able to show what the motive was."

Verdict: Guilty of manslaughter.

Judgment: Imprisonment in the state's prison for a period of not less than two nor more than five years.

The defendant appeals, assigning errors.

Sapp & Sapp, of Greensboro, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

STACY C.J.

The announcement of the solicitor, made before entering upon the trial, that the state would not ask for a verdict off more than murder in the second degree, was tantamount to taking a nolle prosequi, or accepting an acquittal, on the capital charge. State v. Brigman, 201 N.C. 793, 161 S.E. 727; State v. Spain, 201 N.C. 571, 160 S.E. 825; State v. Hunt, 128 N.C. 584, 38 S.E. 473.

The dying declaration of the deceased was admitted only after proper foundation or predicate had been laid for its introduction. State v. Beal, 199 N.C. 278, 154 S.E. 604.

The only serious exception appearing on the record is the seventh, or the one addressed to the court's charge that a killing with a deadly weapon, nothing else appearing, raises a presumption of murder in the second degree. This instruction finds support in the following cases: State v. Robinson, 188 N.C. 784, 125 S.E. 617; State v. Benson, 183 N.C. 795, 111 S.E. 869; State v. Fowler, 151 N.C. 731, 66 S.E. 567; State v. Worley, 141 N.C. 764, 53 S.E. 128; State v. Willis, 63 N.C. 26; State v. Haywood, 61 N.C. 376. But in each of these cases the court was dealing with an intentional killing and not with one in which the state's evidence suggested an accidental killing, or homicide by misadventure. State v. Eldridge, 197 N.C. 626, 150 S.E. 125.

In State v. Quick, 150 N.C. 820, 64 S.E. 168, 170, it was said that, where an intentional killing is admitted or established, the law presumes malice from the use of a deadly weapon, and the defendant is guilty of murder in the second degree, unless he can satisfy the jury of the truth of facts which justify his act or mitigate it to manslaughter. "The burden is on the defendant to establish such facts to the satisfaction of the jury, unless they arise out of the evidence against him." This rule has since been uniformly adhered to in indictments for homicide. State v. Cox, 153 N.C. 638, 69 S.E. 419; State v. Yates, 155 N.C. 450, 71 S.E. 317; State v. Rowe, 155 N.C. 436, 71 S.E. 332; State v. Lane, 166 N.C. 333, 81 S.E. 620; State v. Cameron, 166 N.C. 379, 81 S.E. 748; State v. Pasour, 183 N.C. 793, 111 S.E. 779; State v. Ashburn, 187 N.C. 717, 122 S.E. 833, and formerly in State v. Clark, 134 N.C. 698, 47 S.E. 36; State v. Brittain, 89 N.C. 481; State v. Ellick, 60 N.C. 450, 86 Am. Dec. 442.

Speaking of the presumption which arises from an intentional killing with a deadly weapon, nothing else appearing, Avery, J delivering the opinion of the court in State v. Miller, 112 N.C. 878, 17 S.E. 167, 169, said: "It is true that when the killing with a deadly weapon is proved and admitted the burden is shifted upon the prisoner, and he must satisfy the jury, if he can do so, from the whole of the testimony, as well that offered for the state as for the defense, that matter relied on to show mitigation or excuse is true. State v. Vann, 82 N.C. 631; State v. Willis, 63 N.C. 26; State v. Brittain, 89 N.C. 481, 502. But when it appears to the judge that in no aspect of the testimony, and...