State v. McLawhorn, 337

• Citation: 270 N.C. 622,155 S.E.2d 198
• Decision Date: 20 June 1967
• Docket Number: No. 337,337
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. R. H. McLAWHORN.

Page 198

155 S.E.2d 198

270 N.C. 622

STATE of North Carolina v. R. H. McLAWHORN.

No. 337.

Supreme Court of North Carolina.

June 20, 1967.

T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.

C. E. Gerrans, Kingston, for defendant.

SHARP, Justice.

The evidence reveals that only one shot was fired at the time deceased received the bullet wound which caused his death. The State, having adduced testimony from two witnesses that they saw defendant fire a pistol and that immediately thereafter Brown fell, exclaiming that he had been hit, clearly made out a case for the jury. State v. Smith, 268 N.C. 659, 151 S.E.2d 596; State v. Downey, 253 N.C. 348, 117 S.E.2d 39; State v. Brooks, 228 N.C. 68, 44 S.E.2d 482. Defendant's assignment of error based upon the denial of his motion for nonsuit is overruled.

Over defendant's objection, and for the purpose of corroborating the witnesses Kolonick, Freeman, and Quinlivan, the court permitted the last witness for the State, a Marine sergeant with the Criminal Investigation Department, to testify that Kolonick told him on the morning after the shooting that he had seen defendant fire the gun, and that the other two said they had seen defendant with it in his hand. Defendant assigns the admission of these statements as error, for that (1) they were not made in defendant's presence, and (2) the three witnesses had not first testified that they had spoken with the witness Bennett. This assignment of error is overruled upon the authority of State v. Brown, 249 N.C. 271, 106 S.E.2d 232, wherein Winborne, C.J., said; '(I)t is competent to corroborate a witness by showing that he has previously made the same statement as to the transaction as that given by him in his testimony, and that it is not necessary to ask the witness to whom such former statement, offered in corroboration, was made.' Id. at 274, 106 S.E.2d at 235.

The court charged the jury that if the State had satisfied them beyond a reasonable doubt from the evidence that defendant had intentionally shot Brown with a pistol, thereby inflicting a wound which caused his death, the presumption would arise that the killing was unlawful and that it was done with malice, and that the burden then devolved upon defendant to satisfy the jury '(of such facts and circumstances, that is,) the legal provocation that will rob the crime of malice and thus reduce it to manslaughter.' State v. Mangum, 245 N.C. 323, 96 S.E.2d 39; State v. Utley, 223 N.C. 39, 25 S.E.2d 195.

The judge thereafter gave the following contentions in behalf of defendant: (1) that defendant did not fire the shot which caused Brown's death; and (2) that if the jury should find that he did fire the shot, the shooting was without malice because he fired at a trespasser who had been ordered to leave but showed 'signs that he was not leaving.' In giving the final mandate, the court instructed the jury that if they found beyond a reasonable doubt that defendant intentionally shot Brown with a pistol and inflicted a wound which caused his death, nothing else appearing, defendant would be guilty of murder in the second degree, and that would be their verdict unless defendant had shown to their satisfaction 'that he was not acting with malice but Upon legal provocation, as the court has defined that term to mean to you.' (Emphasis added.) If defendant had carried his burden, the jurors were instructed to acquit him of murder in the second degree and to consider whether he was guilty of manslaughter.

At no time in his charge did the judge define legal provocation. Defendant assigns this omission and the failure of the court to tell the jury what were the 'facts and circumstances, that is the legal provocation arising on the evidence, that would reduce the crime from second degree murder to manslaughter or that would excuse it altogether.' He further assigns as error the failure of the court to charge upon accident, self-defense, and alibi.

Defendant offered no evidence of legal provocation, self-defendant, or accident. His defense was that he did not fire the shot which caused Brown's death; that at the time of the shooting he had just stepped out of the office and started to the front of the house to use the phone Or that he was in the office 40--60 feet away from the group in the yard. (He testified both ways.) Therefore, if any testimony required the trial judge to charge upon the legal provocation which would rebut the presumption of malice arising from an intentional killing with a deadly weapon, it must be found in the State's evidence. A defendant is entitled to whatever advantage the State's evidence may afford him. State v. Downey, supra; State v. Crisp, 244 N.C. 407, 94 S.E.2d 402, 67 A.L.R.2d 236.

The State's evidence contains no suggestion that defendant shot Brown accidently. There is evidence that immediately after the shot was fired Griffin said, 'Everything is O.K., that was just a blank.' There was, however, no evidence that a pistol loaded with blanks was kept in the motel office for the purpose of frightening away trespassers. Nor was there any suggestion in the testimony that Defendant thought the pistol contained blanks instead of live ammunition. Indeed, defendant testified that there was No pistol at the motel. The sailor, he said, could have shot Brown. The court did not err in failing to charge that defendant contended the killing was accidental. A defendant's assertion of accident is, of course, not an affirmative defense but merely a denial that he has committed an intentional killing. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337. In this case, the court instructed the jury explicitly that, in order to convict defendant, the State was required to prove that he had Intentionally shot Brown.

If one kills another with a deadly weapon by reason of provocation 'such as would naturally and reasonably arouse the passions of an ordinary man beyond his power of control,' this sudden passion will rebut the presumption of malice, 26 Am.Jur., Homicide § 22 (1940), and reduce murder in the second degree to manslaughter. State v. Watson, 222 N.C. 672, 24 S.E.2d 540; State v. Merrick, 172 N.C. 870, 90 S.E. 257; State v. Merrick, 171 N.C. 788, 88 S.E. 501.

There was, however, no testimony offered by the State tending to show that defendant shot Brown in a sudden heat of passion caused by provocation which would cause an ordinary man to act so rashly on impulse and without due reflection. Neither Brown nor anyone else had made an assault upon defendant. State v. Hightower, 226 N.C. 62, 36 S.E.2d 649; State v. Mosley, 213 N.C. 304, 195 S.E. 830. Not one of the Marines had attempted to invade the motel; so no question arises as to his right to defend his habitation or place of business. State v. Miller, 267 N.C. 409, 148 S.E.2d 279. Four of the Marines were attempting to leave the motel premises with the fifth, as defendant had ordered them to do. We may assume that defendant became incensed because Brown was resisting his companions in their effort to take him out of the motel yard; still,...