State v. Mercer, 251

Decision Date31 January 1969
Docket NumberNo. 251,251
Citation165 S.E.2d 328,275 N.C. 108
CourtNorth Carolina Supreme Court
PartiesSTATE, v. Ervin MERCER.

Atty. Gen. T. Wade Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

Farris & Thomas, Wilson, for defendant appellant.

BOBBITT, Judge.

The evidence, when considered in the light most favorable to the State, was sufficient to require submission to the jury and to support verdicts of guilty of murder in the first degree. There is no substance to the contention that the motion to dismiss as in case of nonsuit should have been allowed. However, assignments of error, based on exceptions to the charge, are well taken.

The court's instructions include the following: '(W)hen an intentional killing with a deadly weapon is admitted or established, the law then casts upon the defendant the burden of showing to the satisfaction of the jury, not by the greater weight of the evidence, nor beyond a reasonable doubt, but simply to satisfy the jury (of) the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or that will excuse it altogether upon some grounds recognized in law as a defense, such as insanity or misadventure or accident, or self-defense or some other. (That is, gentlemen of the jury, once the killing is admitted or established with a deadly weapon, the law presumes malice, a presumption of malice arises, and therefore it is an unlawful killing with malice, it's murder in the second degree as least.)'

Defendant excepted to and assigns as error the portion of the quoted excerpt enclosed by parentheses. This particular sentence, standing alone, states without qualification that 'once the killing is admitted or established with a deadly weapon * * * it's murder in the second degree At least.' (Our italics.) It is inaccurate, in conflict with the preceding instruction and tends to confuse rather than clarify. The factual situation called for an instruction in the case involving Myrtle (and a similar instruction in the cases involving Ida and Jeffrey) substantially as follows: If the State has satisified the jury from the evidence beyond a reasonable doubt that the defendant Intentionally shot Myrtle with a .38 pistol and thereby proximately caused her death, two presumptions arise: (1) That the killing was unlawful, and (2) that it was done with malice; and, Nothing else appearing, the defendant would be guilty of murder in the second degree. State v. Propst, 274 N.C. 62, 70--71, 161 S.E.2d 560, 567, and cases cited. 'The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions.' State v Gordon, 241 N.C. 356, 358, 85 S.E.2d 322, 324.

In the quoted excerpt, preceding the portion to which defendant excepted, the court instructed the jury that 'when An intentional killing with a deadly weapon is admitted or established, the law then casts upon the defendant the burden of showing to the satisfaction of the jury, not by the greater weight of the evidence, nor beyond a reasonable doubt, but simply to satisfy the jury (of) the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or that will Excuse it altogether upon some grounds recognized in law as a defense, such as insanity or misadventure or accident, or self-defense or some other.' (Our italics.)

There was no evidence of self-defense. There was no evidence of misadventure or accident. Moreover, misadventure or accident is not an Affirmative defense but merely a denial that defendant intentionally shot the deceased. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337; State v. McLawhorn, 270 N.C. 622, 628, 155 S.E.2d 198, 203; State v. Fowler, 268 N.C. 430, 150 S.E.2d 731. As to insanity, the record discloses: In a portion of the charge to which defendant excepted, extensive instructions were given with reference to insanity. However, near the conclusion of the charge, in an instruction to which defendant excepted, the court charged the jury as follows: '(U)nder the evidence in the case as the Court understood the evidence, there is no evidence of legal insanity, no evidence of insanity that would have a legal recognition.'

We agree there was no evidence defendant was legally insane. Under the circumstances, it is unnecessary to consider whether the instructions given as to legal insanity were correct. It is, however, error to instruct the jury as to legal principles unrelated to the factual situation under consideration. State v. Duncan, 264 N.C. 123, 141 S.E.2d 23.

The instruction preceding the sentence to which defendant excepted is fraught with errors and irrelevancies. Under these circumstances, it cannot be considered sufficient to cure the incompleteness and inaccuracy in the instruction to which defendant excepted.

Defendant testified that, when he went upon the porch, he took with him, in a bag, the pistol Myrtle had turned over to him earlier that day; that he had given it to her originally for her protection and was returning it to her for this purpose; that he walked up on the porch, knocked on the door, 'heard somebody walking there in the house,' laid the pistol in a porch chair beside the door; that he knocked on the window and then knocked twice on the door; and that the next thing he knew, 'right out of the blue sky, Myrtle just hollered out and said, 'if you don't get off the damn porch, I'm going to call the police on you"; and, from that point, he was 'blank in (his) mind.' He testified that, when he became conscious, he was standing on the porch and that the pistol, which was beside his head, clicked.

The court's final instructions were as follows: '(T)he Court instructs you that the evidence in regard and surrounding the alleged loss of memory by the defendant will be considered by you On the question of premeditation and deliberation in the charge of murder in the first degree. * * * if you find from the evidence, not by the greater weight, nor by the preponderance, but if the defendant has satisfied you--merely satisfied you--that he lost consciousness, sufficient consciousness, to the extent that he did not have sufficient time to Premeditate or deliberate, that is, if he did not have sufficient time to form in his mind the intent to kill, under the definition of Premeditation and Deliberation, then it would be your duty to return a verdict of not guilty of murder in the first degree, because the Court has instructed you if the State has failed to satisfy you of the element of Premeditation or Deliberation, or if there arises in your minds a reasonable doubt in regard to those two elements or either one of those two elements, it would be your duty to return a verdict of not guilty. And further in regard, when you come to consider those elements of Premeditation and Deliberation, if the defendant has satisfied you, not beyond a reasonable doubt, not by the greater weight of the evidence, but has merely satisfied you that he lost consciousness to such an extent that he was unable to Premeditate, and was unable to Deliberate, according to the definition of those terms that the law has given you, then he could not be guilty of murder in the first degree, and it would be your duty to return a verdict of not guilty as to murder in the first degree, under those circumstances. Now, The Court feels that those are the only two elements in the case in which this evidence in regard to his loss of consciousness applies, and the Court has ruled that there is no element of legal insanity in the evidence.' (Our italics.)

Defendant's assignment of error, based on his exception to the foregoing portion of the charge, must be sustained. Defendant testified he was completely unconscious of what transpired when Myrtle, Ida and Jeffrey were shot. The court instructed the jury that this evidence was for consideration Only in respect of the elements of premeditation and deliberation in first degree murder. This restriction of the legal significance of the evidence as to defendant's unconsciousness was erroneous.

G.S. § 1--80 requires a trial judge to instruct the jury as to 'every substantial and essential feature of the case embraced within the issue and arising on the evidence, and this without any special prayer for instructions structions to that effect.' State v. Merrick, 171 N.C. 788, 795, 88 S.E. 501, 505; State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53, and cases cited. Where defendant's evidence, if accepted, discloses facts sufficient in law to constitute a defense to the crime for which he is indicted, the court is required to instruct the jury as to the legal principles applicable thereto. What weight, if any, is to be given such evidence, is for determination by the jury. State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83.

'To put the subject in perspective, we must start with the common law's conception of crime. The common law required (1) an evil deed and (2) Mens rea--a guilty mind.' Weintraub, C.J., concurring in State v. Sikora, 44 N.J. 453, 210 A.2d 193 (1965).

'If a person is in fact unconscious at the time he commits an act which would otherwise be criminal, he is not responsible therefor. The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.' 1 Wharton's Criminal Law and Procedure (Anderson), § 50, p. 116.

'Unconsciousness is a complete, not a partial, defense to a criminal charge.' 21 Am.Jur.2d, Criminal Law § 29, p. 115.

'Unconsciousness. A person cannot be held criminally responsible for acts committed while he is unconscious. Some statutes broadly exempt from responsibility persons who commit offenses without being conscious thereof. Such statutes, when construed in connection with other statutes relating to criminal capacity of the insane and voluntarily intoxicated, do not include within their protection either...

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