State v. Montague

• Decision Date: 04 December 1979
• Docket Number: No. 64,64
• Citation: 259 S.E.2d 899,298 N.C. 752
• Parties: STATE of North Carolina v. Carlton Donnell MONTAGUE.
• Court: North Carolina Supreme Court

Page 899

259 S.E.2d 899

298 N.C. 752

STATE of North Carolina v. Carlton Donnell MONTAGUE.

No. 64.

Supreme Court of North Carolina.

Dec. 4, 1979.

W. G. Ransdell, Jr., Raleigh, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first assigns as error the failure of the trial judge to charge on self-defense.

The court is required to charge on all substantial and essential features of a case which arise upon the evidence, even absent a special request for the instruction. When supported by the evidence, self-defense is a substantial and essential feature of a criminal case. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974). Therefore, the answer to this assignment of error lies in whether there was sufficient evidence to support an instruction on self-defense. In resolving this question, the facts must be interpreted in the light most favorable to defendant, and when his evidence is sufficient to invoke the doctrine of self-defense, the instruction must be given even though the State's evidence is contradictory. State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973).

"One may kill in self-defense if he is without fault in bringing on the affray, and it is necessary or appears to him to be necessary to kill his adversary to save himself from death or great bodily harm the reasonableness of his apprehension being for the jury to determine from the circumstances as they appeared to him." 6 Strong's N.C. Index 3d, Homicide, sec. 9 (1978). Thus, if a person willingly and aggressively without legal provocation or excuse enters into a fight, he cannot invoke the doctrine of self-defense. State v. Watkins, supra; State v. Randolph, 228 N.C. 228, 45 S.E.2d 132 (1947).

Here the evidence discloses that when the Shaw students first passed defendant and his companions, defendant produced a pistol and said, "Well, if they really want to start something, I got something too." When the students returned from the store on the way to the Shaw campus, McArthur and Norris exchanged some insulting words and Chesley walked toward Norris. At this point, no one had spoken to or in any way threatened defendant. Even so, from his place of safety on the wall, he shouted, "Y'all call home boy," and thereupon took his pistol from his backpack. After defendant moved to obtain his pistol, Chesley took two or three steps toward defendant. Defendant then ran behind Norris into the street and fired the fatal shots. It appears from the evidence that defendant left a place of safety and aggressively and willingly entered into a fight without lawful excuse or adequate provocation. The trial judge, therefore, correctly refused to instruct on self-defense.

Defendant next assigns as error the failure of the trial judge to submit and instruct on the lesser included offense of voluntary manslaughter.

Voluntary manslaughter is a lesser included offense of murder in the first degree, and when there is evidence to support the lesser included offense, defendant is entitled to have voluntary manslaughter submitted to the jury under proper instructions. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Robinson, 188 N.C. 784, 125 S.E. 617 (1924).

We need not consider defendant's argument that defendant was entitled to this instruction on the ground that while acting in self-defense, he used excessive force since we have held that his evidence does not support a claim of self-defense. However, defendant strongly argues that voluntary manslaughter should have been submitted to the jury on the theory that defendant fired the fatal shots while under the influence of sudden passion aroused by adequate provocation.

Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. Presumptions that a homicide was unlawful and done with malice arise upon proof or admission of an intentional killing with a deadly weapon and also when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. State v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971); State v. Gordon, 241 N.C. 356, 85 S.E.2d 322 (1955).

Voluntary manslaughter is the unlawful killing of a human being without malice, express or implied, and without premeditation or deliberation. (Citations omitted.) One who kills a human being while under the influence of passion or in the heat of blood produced by adequate provocation is guilty of manslaughter. (Citations omitted.)

State v. Wynn, 278 N.C. 513, 518, 180 S.E.2d 135, 139 (1971).

In order for a homicide to be reduced from second-degree murder to voluntary manslaughter on the theory that a defendant acted under the influence of sudden passion, the heat of passion suddenly aroused by provocation must be of such nature as the law would deem adequate to temporarily dethrone reason and displace malice. State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974), Modified, 428 U.S. 903, 96 S.Ct. 3206, 49 L.Ed.2d 1207 (1976). Mere...