State v. Holton

• Decision Date: 12 December 1973
• Docket Number: No. 53,53
• Citation: 200 S.E.2d 612,284 N.C. 391
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charles Ernest HOLTON, Jr., Alias Chick Holton.

Page 612

200 S.E.2d 612

284 N.C. 391

STATE of North Carolina v. Charles Ernest HOLTON, Jr., Alias Chick Holton.

No. 53.

Supreme Court of North Carolina.

Dec. 12, 1973.

Atty. Gen. Robert Morgan and Asst. Attys. Gen. Claude W. Harris and Walter E. Ricks, III, Raleigh, for the State.

Schoch, Schoch, Schoch & Schoch, by Arch K. Schoch, High Point, for defendant-appellant.

MOORE, Justice.

Defendant by his first assignment of error contends that the trial court erred in overruling his motion for a directed verdict of not guilty for the reason that the State failed to prove that Buford Ball, the alleged deceased, is actually dead. This contention is based upon the fact that no witness testified that he actually saw the dead body of Ball.

In a criminal case the proper motion to test the sufficiency of the State's evidence is a motion to dismiss the action or a motion for judgment as in the case of nonsuit. G.S. § 15--173. State v. Everette, 284 N.C. 81, 199 S.E.2d 462 (1973); State v. Evans and State v. Britton and State v. Hairston, 279 N.C. 447, 183 S.E.2d 540 (1971). On such motion the evidence must be considered in the might most favorable to the State, and the State is entitled to every inference of fact that may be reasonably deduced from the evidence. Contradictions and discrepancies in the State's evidence are for the jury to resolve and do not warrant the granting of the motion. State v. Henderson, 276 N.C. 430, 173 S.E.2d 291 (1970); State v. Carter, 265 N.C. 626, 144 S.E.2d 826 (1965). Admitted evidence, whether competent or incompetent, must be considered on defendant's motion for judgment as in the case of nonsuit. State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967); State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964). Treating defendant's motion for a directed verdict of not guilty as a motion for judgment as of nonsuit under G.S. § 15--173 and applying the well-established rules for such motion to the evidence in this case, we hold that there was ample evidence of Ball's death to require submission to the jury. State v. Cutler, supra; State v. Virgil, supra; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728 (1962).

Several witnesses for the State testified without objection that they had known Ball before he died. Dr Douglas, who treated the deceased over a period of months, testified about various treatments given to Ball from the time he entered the hospital until he died. Dr. Douglas further testified that Ball died on 29 December 1971, and that he had seen Ball's death certificate and the report on an autopsy performed on Ball. He further testified that in his opinion 'Buford Ball died as a result of infection, debilitation directly as a result of gunshot injuries, including an injury to his large bowel with gross contamination at the time of his injuries.' From this evidence, it is obvious that Ball is dead. This assignment has no merit.

Defendant next contends that he was entitled to judgment as of nonsuit because of a fatal variance in the bill of indictment that charged that Ball was killed on 4 September 1971 and the evidence that showed that Ball was alive some four months later. While it is true that a fatal variance between the indictment and proof may be raised by a motion for nonsuit, State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Law, 227 N.C. 103, 40 S.E.2d 699 (1946), no such variance appears in this case. G.S. § 15--155 provides that neither 'omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly' shall vitiate an indictment. The indictment in this case stated the date on which the fatal injury was inflicted rather than the date on which the death occurred. This Court, as early as 1854 in State v. Baker, 46 N.C. 267, held that where an indictment charged the murder as of the date the blow was given, and the evidence revealed that the victim lived for twenty days after receiving the blow and then died, such variance was not material. See also State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972); State v. Trippe, 222 N.C. 600, 24 S.E.2d 340 (1943); State v. Pate, 121 N.C. 659, 28 S.E. 354 (1897).

In his next assignment defendant asserts that the trial court erred in permitting the expert witness, Dr. Donald P. Douglas, to give his opinion about the cause of Ball's death without propounding a hypothetical question to include facts of which the doctor had no personal knowledge.

Dr. Douglas testified that he and his associate, Dr. Canipe, treated Ball from the time he entered the hospital on 4 September 1971 until the date of his death on 29 December 1971. Dr. Douglas first saw Ball in the emergency room of the High Point Memorial Hospital, and at that time Ball's condition was 'quite serious.' Ball was suffering from a gunshot wound in his right shoulder and there such wounds in his abdominal cavity. One bullet had passed through the large and small intestines, causing contamination and extensive damage, and then lodged in the left pelvic. During the first operation on the intestines Ball lost almost all of his body's blood. Dr. Douglas did not feel that Ball could survive any more surgery, and consequently he elected to temporarily leave the bullet in the pelvic. The contamination that resulted from bowel movement having been spilled throughout the abdominal cavity soon caused infection in the pelvic area and necessitated a subsequent operation by an orthopedic surgeon, Dr. Fred Wood, to remove the bullet and drain the infection. This operation was performed on 1 October 1971. On 2 November 1971 Ball suffered massive hemorrhage along a rubber tube that had...