State v. Mai

• Decision Date: 24 September 1947
• Docket Number: No. 80.,80.
• Parties: STATE. v. DE MAI.
• Court: North Carolina Supreme Court

227 N.C. 657

44 S.E.2d 218

STATE.

v.DE MAI.

No. 80.

Supreme Court of North Carolina.

Sept 24, 1947.

Appeal from Superior Court, Nash County; Luther Hamilton, Special Judge.

N. DeMai was convicted of murder in the second degree, and he appeals.

No error.

The defendant was indicted for the murder of Charlie A. Johnson. On the trial the State's evidence tended to show the defendant intentionally shot the deceased with a rifle, killing him instantly. It was contended on behalf of the defendant that the evidence warranted the conclusion that the killing was done in self-defense.

The circumstances of the homicide, according to the evidence offered by the State, were these: Both defendant and the deceased lived south of the highway between Rocky Mount and Nashville, the defendant's land fronting on the highway and the land of the deceased lying south and west of the defendant's. The home of the deceased was some three-quarters of a mile from the highway, and reached by a road therefrom known as the Winstead Road. His family consisted of his wife, three sons aged 19, 17, and 16 years, and a nephew Jimmie Johnson, aged 26. As the result of a dispute over the location of the dividing line between the lands of defendant and those of the deceased ill-feeling had arisen between them, and defendant had threatened the life of deceased.

Late in the afternoon of April 26, 1947, the defendant appears to have taken possession of the disputed land and had his servant plowing thereon while he kept guard, armed with an automatic magazine rifle, 25-20 caliber. The deceased who seems to have been unaware of the action of the defendant had driven in his car to a store on the highway to get an afternoon paper. While he was gone one of his sons looking across the open space from his home (about a quarter of a mile) saw the defendant with his rifle, and he and his two brothers got in another car, and drove out to warn their father of the defendant's proximity. But before they met their father, they saw him turn to his left off the Winstead Road and into a farm path which led to his tenant house 250 yards from the road, and in the direction of the field where the defendant was. The deceased was unarmed, and could not have seen the defendant on account of woods and houses when he turned into the farm path to the tenant house, nor until he walked out beyond the tenant house into an open field. When the three sons, all unarmed, arrived on the scene the deceased was talking to the defendant who was standing some 50 yards away with the rifle in his hand. They heard defendant say he would kill the deceased if he came out there, and then declared he was going to kill him anyway. The defendant appeared to be excited and angry. The deceased seemed to have been in a good humor, as he laughed, waved his hand and said he was unarmed, but if defendant was going to kill him anyway he might as well get his gun, and told one of his sons to go to the house and get his gun. The son got in one of the cars, drove to the house where Jimmie Johnson, his nephew, joined him, and returned with a pistol, a shotgun and a 22 caliber rifle. When these reached the scene the defendant was still in the field with his rifle, and the deceased was standing in the open space near the tenant house smoking a cigarette. The other boys came to the car and took or were handed the 22 rifle and shotgun, Jimmie Johnson keeping the pistol. At that time the deceased exclaimed, "Lookout, he is going to shoot, " and the boys dropped to the ground. Defendant opened fire and fired several shots. Apparently one of the first struck the deceased in the forehead and he fell to the ground on his face. Defendant continued to fire, and the Johnson boys then began firing and advancing through the woods on their left The defendant fired on them, slightly wounded Jimmie Johnson, and then turned and ran toward his house. The Johnson boys came back and found their father dead. The still burning cigarette lay near his outstretched fingers on the ground.

The defendant's evidence, on the other hand, tended to show that when his servant began plowing earlier that afternoon, some one shot at him from the woods, the bullet passing through his clothes. The servant left his mule in the field and ran to the house and told defendant who thereupon had warrant sworn out against the deceased and one of his sons. The defendant then took his rifle and went to the field to protect his premises and his property from further attack. Shortly thereafter the deceased and his sons and nephew appeared near the tenant house, all armed with guns and rifles, and defendant retreated. The attackers deployed their forces on his right and left as if to surround him, and began firing at him from all sides. He fired several shots in return, and having used up the few cartridges he had, ran. He stoutly maintained he did not shoot at the deceased, and declared it could not have been a bullet from his rifle that killed him.

However, the State offered the bullet taken from the skull of the deceased and a ballistics expert from the F. B. I. who testified the fatal bullet was 25-20 caliber, and that from his examination of bullet and rifle in his opinion the bullet came from the defendant's rifle. Another witness, a former lieutenant of Marines who had served overseas during the war and had been for some time an instructor in firearms, testified the 25-20 rifle had greater range than the 22 rifle; that the shotgun would not be effective beyond 50 yards, and that the pistol had a maximum range of 75 yards. There was evidence from a number of witnesses that the defendant was a man of good character, and contra from State's witnesses that his character was bad.

There was verdict of guilty of murder in the second degree, and from judgment imposing prison sentence the defendant appealed.

Harry McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for State.

O. B. Moss, of Spring Hope, Thorp & Thorp, of Rocky Mount, and J. A. Jones, of Kinston, for defendant.

DEVIN, Justice.

The trial of this case necessarily consumed considerable time. Seventy-five witnesses were examined, forty-five for the State and thirty for defendant. The transcript of their testimony fills 180 pages of the record, and the judge's charge to the jury covered 56 pages. The industry and zeal of defendant's counsel are reflected in the 187 exceptions noted at the trial, 108 of them relating to the judge's charge. Certainly no stone has been left unturned which might disclose error. Under the ordinary limits of an opinion it will be inexpedient to discuss all of the exceptions brought up in defendant's appeal, but each has been examined and none overlooked.

The defendant assigns error in the admission over objection of testimony from witness John Johnson to the effect that he knew deceased went to the tenant house on the afternoon of the homicide to check fertilizer as witness had heard him speak of it, and that witness had himself gone there to keep deceased from getting into trouble with the defendant. While the declaration of a deceased person not part of the res gestae would ordinarily be regarded as incompetent, here the admission of the testimony objected to was harmless, as there was no evidence that deceased knew of the proximity of the defendant when he went to the tenant house or that he went for other than some lawful purpose. Likewise, it was competent for this witness to negative the suggestion that he himself went there to attack the defendant. He testified both he and the deceased were unarmed.

The evidence of witness Jimmie Johnson as to the caliber and range of the weapons exhibited was competent, as the witness was shown to have had peculiar knowledge and experience as to such matters from service in the late war in the U. S. Marine Corps where he was for some time instructor in the use of firearms. While the court did not specifically announce preliminary ruling that he was an expert, by admitting his testimony the court presumably so found. State v. Atlantic Ice & Coal Co., 210 N.C. 742, 752, 188 S.E. 412. The exception to the testimony of the ballistics expert from the F. B. I. is without merit. Nor can the exception to the testimony of a character witness be sustained. It was for the jury to...