State v. Kluckhohn, 442

• Decision Date: 13 January 1956
• Docket Number: No. 442,442
• Citation: 90 S.E.2d 768,243 N.C. 306
• Parties: STATE, v. Richard Paul R. KLUCKHOHN.
• Court: North Carolina Supreme Court

Page 768

90 S.E.2d 768

243 N.C. 306

STATE, v. Richard Paul R. KLUCKHOHN.

No. 442

Supreme Court of North Carolina.

Jan. 13, 1956

Wm. B. Rodman, Jr., Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

Manning & Fulton, John L. Sanders, Raleigh, for defendant.

DENNY, Justice.

The record in this case contains approximately 255 pages of evidence adduced in the trial below; the State's evidence consists of 146 pages and that of the defendant 109. Consequently, we have set out herein only such portions thereof as we deem necessary to an understanding of the questions presented for our consideration and determination.

The defendant entered 560 exceptions in the trial below, including those challenging the correctness of the charge. The record contains 36 assignments of error based on numerous exceptions. However, only 32 of these exceptions are discussed in the brief. The remaining ones will be deemed abandoned under Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 562.

The first assignment of error is directed to the failure of the court to sustain the defendant's motion for judgment as of nonsuit as to the charge of manslaughter, and for a directed verdict of not guilty.

It is well settled in this jurisdiction that in passing upon a motion for judgment as of nonsuit in a criminal prosecution, we must consider the evidence in the light most favorable to the State, and if there is any competent evidence to support the charge contained in the bill of indictment, the case is one for the jury. State v. Ritter, 239 N.C. 89, 79 S.E.2d 164; State v. Church, 231 N.C. 39, 55 S.E.2d 792; State v. Gentry, 228 N.C. 643, 46 S.E.2d 863; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473. Furthermore, in the consideration of such motion, the State is entitled to the benefit of every reasonable inference that may be drawn from the evidence. State v. Ritter, supra; State v. Gentry, supra. Applying the rule as laid down in our decisions with respect to such motions, we think the State's evidence in the trial below was sufficient to carry the case to the jury, and we so hold. Therefore, this assignment of error is overruled.

The defendant excepts and assigns as error the following portion of the charge: 'The State contends that you should find the defendant guilty of manslaughter for that he violated a statute on the statute books which reads as follows: If a (any) person shall point any gun or pistol at any person, either in fun or otherwise, whether such gun or pistol be loaded or not (loaded), he shall be guilty of an assault, and upon conviction of the same shall be fined, imprisoned, or both, at the discretion of the court. G.S. § 14-34. I instruct you, gentlemen, that a violation of that statute proximately resulting in injury and death would constitute manslaughter.'

The defendant insists that there is no evidence to show that he intentionally pointed his gun at the deceased, and that the evidence as to 'dry firing' was not sufficient to show a violation of the above statute. There is no evidence in the record tending to show that the defendant intentionally pointed his gun at the deceased and then fired, unless the evidence with respect to 'dry firing' was sufficient to support the State's contention in that respect. The Chapel Hill police officer testified that when he talked with the defendant in the apartment of Dr. Kahl, around 6:00 p. m. on 13th May, 1955, that the defendant said, 'I had taken the gun down and was dry firing it.' The State offered evidence to the effect that 'dry firing' is a term or terminology classifying a certain use of a firearm; that 'dry firing' is the aiming of a weapon at any given object, a lining up the sights on some object and then squeezing the trigger. This evidence may be considered on the question of culpable negligence, but in our opinion it is not sufficient to support the State's contention that the defendant intentionally pointed his pistol at the deceased and then pulled the trigger, and we so hold. Even so, the case should be submitted to the jury on proper instructions for its determination as to whether or not the death of the deceased was proximately caused by the culpable negligence of the defendant. State v. Limerick, 146 N.C. 649, 61 S.E. 568; State v. Turnage, 138 N.C. 566, 49 S.E. 913; State v. Trollinger, 162 N.C. 618, 77 S.E. 957; State v. Stansell, 203 N.C. 69, 164 S.E. 580.

In the case of State v. Turnage, supra, the defendant had been convicted of involuntary manslaughter. The evidence tended to show that John Turnage, the defendant, threw a brickbat at Blaney Turnage who was in a peach tree. Thereafter, the defendant John Turnage, Dan Moore, Sam Moore, James Hunt and Blaney Turnage went into the Turnage back yard. The defendant went around the house and Blaney Turnage, his brother, followed him with an axe. The defendant went in the house and came out with a gun in his hands, with the muzzle in the direction of the deceased and his companions. Dan Moore, a witness for the State, testified that he could not say "how high the gun was up, or whether to the prisoner's shoulder or not; that he heard the gun fire when the prisoner was 12 feet from the deceased.' ' James Hunt was hit and killed by the shot. The defendant testified, "When I got the gun I did not know it was loaded--had no knowledge of it. After shooting, I learned that the gun had been loaded. Did not intentionally point the gun at any one. * * * I got the gun to frolic with Blaney.' ' Evidence was introduced to the effect that ordinarily the gun was not loaded. Among other instructions, the court charged the jury that upon all the evidence in the case, if believed beyond a reasonable doubt, the prisoner was guilty of manslaughter at least. This Court said: 'We do not mean to intimate that there was not sufficient evidence to go to the jury, but we think the guilt or innocence of the prisoner should have been submitted to the jury upon all the evidence, with full and appropriate instructions as to what constitutes manslaughter, as the state asked for no other verdict, and presenting to the jury the contentions of the state and prisoner arising upon the evidence.'

Likewise, in State v. Limerick, supra, the evidence was to the effect that two young boys, the best of friends, had a gun and started through a straw field. A witness for the State testified that the prisoner and the deceased were scuffling over the gun. "One of them said: 'I will shoot you.' I don't know which it was. The other said: 'No, you won't; I will shoot you.' * * * I turned around, and saw the gun fire, and deceased fell. Prisoner had gun when deceased fell.'' [146 N.C. 649, 61 S.E. 569.] The deceased said before he died that the shooting was an accident. The trial judge charged the jury that if they believed the evidence they should find the defendant guilty of manslaughter at least; that, taking all the evidence in its most favorable light to the defendant, he would be guilty of manslaughter. The jury returned a verdict of guilty of manslaughter. This Court, in awarding a new trial, said: 'Undoubtedly, if the prisoner intentionally pointed the gun at the deceased, and it was then discharged, inflicting the wound of which he died, or if the prisoner was at the time guilty of culpable negligence in the way he handled and dealt with the gun, and by reason of such negligence the gun was discharged, causing the death of deceased, in either event the prisoner would be guilty of manslaughter; and this, whether the discharge of the gun was intentional or accidental. * * * But neither of these positions, necessarily or as a matter of law, arise from the testimony, and the question of the prisoner's guilt or innocence must be left for the jury to determine, on the facts as they shall find them. State v. Turnage'.

In State v. Trollinger, supra [162 N.C. 618, 77 S.E. 858], the deceased was killed by the discharge of a pistol in the hands of the defendant and under circumstances as follows: A group of persons, seven in number, in which the deceased and the defendant were included, were talking and laughing. A witness for the State testified that he was from five to ten feet behind the group and heard a shot, and heard a person named Trollinger (not the defendant) say: "'You shot that boy""'! and head the defendant say, ""I never shot the boy.""' That he caught up with the crowd and found Nash Lane shot. The witness never saw the pistol. The court directed a verdict of guilty of manslaughter. This Court, in giving a new trial, said: 'It is not admitted, nor has it thus far been established, that the prisoner intentionally pointed the pistol towards the deceased, and the testimony as now given in seems to present the prisoner's case on the question whether he was guilty of culpable negligence in the way he was handling the weapon at the time of its discharge, negligence of a kind not unlikely to cause injury to the deceased or any of the bystanders and a proper application of the principles announced in Limerick's Case requires that the issue be submitted to the jury as to defendant's guilt or innocence of the crime of manslaughter. See State v. Turnage, 138 N.C. 566, 49 S.E. 913.'

The defendant also assigns as error the failure of the court to give the pertinent contentions arising on his evidence with respect to 'dry firing,' flight, character evidence, and other pertinent matters, and its further failure to declare and explain the law applicable to his contentions as to what occurred, if the jury should find his version of what occurred to be true. Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247; State v. Sherian, 234 N.C. 30, 65 S.E.2d 331; State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53; State v. Herbin, 232 N.C. 318, 59 S.E.2d 635; State v. Sutton, 230 N.C. 244, 52 S.E.2d 921. This assignment of error is well taken and will be upheld.

The defendant likewise assigns as error the following portion of the...