State v. Hightower
| Decision Date | 31 January 1946 |
| Docket Number | 223 |
| Citation | 36 S.E.2d 649,226 N.C. 62 |
| Parties | STATE v. HIGHTOWER. |
| Court | North Carolina Supreme Court |
Criminal prosecution on bill of indictment charging that defendant did kill and murder one William Bunker.
Defendant and deceased were prisoners confined in a prison camp located in Wilkes County. Sometime shortly prior to the homicide the defendant had been put in solitary confinement for a period of days. He believed that this was due to the fact the deceased had reported to the prison officials certain acts of sex perversion by defendant. Being incensed thereby he had made a number of threats against deceased, the object of his unnatural love.
On Sunday, 1 April 1945, the prisoners were in camp, more or less at ease. Bunker, the deceased, and two other prisoners were passing ball in the yard outside the cell block. The defendant went to the yard and told Bunker he wanted to see him. He put his arm around Bunker and they walked into the cell block and continued on down about midway the cell block while the defendant still held Bunker around his waist. As they proceeded defendant had a knifelike weapon in his hand and Bunker was holding defendant's wrist. Bunker cried out to the twenty-odd prisoners in the cell block, asking for help and pleading that they stop defendant and not let defendant kill him. They in turn shouted to defendant, telling him not to kill Bunker but they did nothing further to interfere.
Bunker lost his hold on defendant's wrist. Defendant then tripped Bunker, who fell to the floor. Thereupon defendant stabbed him several times with the weapon. He said ' Bunker managed to get up and run to the sink. Defendant caught up with him, knocked him down, and stabbed him five or six times. Two of the stab wounds entered the heart, causing the death of Bunker before he reached the hospital.
The weapon used by defendant was a hand-made knife or dirk-like instrument, having a wood handle and a blade six inches long. The blade was set in the handle, was sharp on both sides and was pointed on the end. It was about 3/16 inch thick and 3/4 inch wide.
There was a verdict of guilty of murder in the first degree. The court pronounced judgment of death and defendant appealed.
Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes, Ralph M Moody, and J. E. Tucker, Asst. Attys. Gen., for the State.
J. Allie Hays and Eugene Trivette, both of North Wilkesboro, for defendant appellant.
The record contains seventy assignments of error. Of these, eleven are brought forward and noted in defendant's brief. The others, in support of which no reason or argument is stated or authority cited, are deemed to be abandoned. Rule 28, 221 N.C. 562; State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25; State v. Miller, 219 N.C. 514, 14 S.E.2d 522; State v. Howley, 220 N.C. 113, 16 S.E.2d 705; Bank v. Snow, 221 N.C. 14, 18 S.E.2d 711.
In its charge the court cautioned the jury they should consider the testimony of the defendant 'in the light of his interest in your verdict, and in the outcome of the trial. ' The use of the term 'in the outcome of the trial ' does not constitute a substantial departure from language we have heretofore approved. The outcome of the trial depends upon and is controlled by the outcome of the verdict. Essentially they are one and the same. State v. Davis, 209 N.C. 242, 183 S.E. 420; State v. Auston, 223 N.C. 203, 25 S.E.2d 613.
Defendant likewise excepts to the use of the language 'if you come to the conclusion that he is telling the truth. ' The exception is without merit. To find is to arrive at a conclusion. Webster's Int. Dict. So then, 'if you find,' 'if you are convinced' and 'if you come to the conclusion' are equivalent and synonymous expressions. The use of one in preference to another is not prejudicial.
In defining murder in the first degree, and particularly the element of malice, the court did not use the adjective 'aforethought.' In this there was no error. State v. Smith, 221 N.C. 278, 20 S.E.2d 313. 'Malice aforethought' was a term used in defining murder prior to the time of the adoption of the statute dividing murder into degrees. As then used it did not mean an actual, express or preconceived disposition; but imported an intent, at the moment, to do without lawful authority, and without the pressure of necessity, that which the law forbade. State v. Crawford, 13 N.C. 425. As used in C.S. s 4200, now G.S. s 14-17, the term 'premeditation and deliberation' is more comprehensive and embraces all that is meant by 'aforethought', and more. Hence the use of 'aforethought' is no longer required.
The weapon used by the defendant had been minutely described. It had been offered in evidence and exhibited to the jury. The court referred to it as 'the implement offered in evidence and referred to by witnesses as a knife. ' No further definition of 'implement' was required. As used by the court it meant the weapon offered in evidence. This was as definite and certain as it was possible for the court to make it. It is inconceivable that the jury could have misunderstood.
Nor did the court err in instructing the jury that the implement when used to stab another in the manner described by...
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