State v. Perry

• Decision Date: 18 March 1936
• Docket Number: 145.
• Citation: 184 S.E. 545,209 N.C. 604
• Parties: STATE v. PERRY.
• Court: North Carolina Supreme Court

184 S.E. 545

209 N.C. 604

STATE v. PERRY.

No. 145.

Supreme Court of North Carolina

March 18, 1936

Appeal from Superior Court, Hertford County; Sinclair, Judge.

Charles Perry was convicted of murder, and he appeals.

New trial.

CLARKSON J., dissenting.

Whenever there is any evidence or when any inference can be fairly deduced therefrom tending to show lower grade of murder, it is duty of trial judge, under appropriate instructions, to submit that view to the jury.

C. W Jones, of Winton, and J. H. Matthews, of Windsor, for appellant.

A. A F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.

SCHENCK, Justice.

This is a criminal action wherein the defendant appeals from sentence of death based upon a verdict of guilty of murder in the first degree. Under the view we take of the case it becomes necessary for us to consider only one group of the defendant's assignments of error, namely, those relating to the failure of the court to submit to the jury the issue of murder in the second degree.

The state offered evidence to the effect that the defendant made a confession in which he stated that he was with Joseph Terry late at night and that Joseph Terry went into his house, out of sight of the defendant, and fired the fatal shot that killed the deceased. The state also offered in evidence the testimony of Joseph Terry to the effect that he and the defendant were out together at night and that the defendant told him (witness) that he (defendant) had shot and killed the deceased during an interval when they were separated. No eyewitness to the homicide was introduced. The evidence as to how the actual killing was accomplished is entirely circumstantial. While there was evidence of threats and of motive and of other facts and circumstances amply sufficient to take the case to the jury upon the issue of murder in the first degree, there was no evidence that the crime was committed by any of the means specifically mentioned in the statute defining the two degrees of murder or in the perpetration or attempt to perpetrate a felony, as delineated in C.S. § 4200.

The defendant offered no evidence.

The court charged the jury to return a verdict of guilty of murder in the first degree or not guilty.

It is only in cases where all of the evidence tends to show that the homicide was committed by means of poison, lying in wait, imprisonment, starving, torture, or in the perpetration or attempt to perpetrate a felony, that the trial judge can instruct the jury that they must return a verdict of murder in the first degree or not guilty. In those cases where the evidence establishes that the killing was with a deadly weapon, the presumption goes no further than that the homicide was murder in the second degree, and if the state seeks a conviction of murder in the first degree it has the burden of proving beyond a reasonable doubt that the homicide was committed with deliberation and premeditation. Under such circumstances it is error for the trial judge to fail to submit to the jury the theory of murder in the second degree, since it is the province of the jury to determine if the homicide be murder in the first or in the second degree; that is, whether they (the jury) are satisfied beyond a reasonable doubt, from the evidence, that the homicide was committed with deliberation and premeditation. Whenever there is any evidence or when any inference can be fairly deduced therefrom tending to show a lower grade of murder, it is the duty of the trial judge under appropriate instructions to submit that view to the jury. The defendant is entitled to have the jury instructed to the effect that if they should find beyond a reasonable doubt that he committed the murder, and should fail to find beyond a reasonable doubt that such murder was committed with deliberation and premeditation, they should return a verdict of guilty of murder in the second degree. State v. Spivey, 151 N.C. 676, 65 S.E. 995; State v. Newsome, 195 N.C. 552, 143 S.E. 187.

Under the authorities cited, we hold that the failure to submit to the jury the theory of murder in the second degree entitles the defendant to a new trial, and it is so ordered.

New trial.

CLARKSON Justice (dissenting).

The defendant was indicted and tried for the homicide of Skidmore Nichols, on the night of September 14, 1933, and convicted of murder in the first degree.

The defendant, Charles Perry, paid the rent for the house that Skidmore Nichols' wife and family lived in and he was there two or three times a week. In January, 1933, Skidmore Nichols and his wife separated. Joseph Terry, the brother of Skidmore Nichols' wife, had a house some five or six miles away. The defendant Charles Perry, Joseph Terry, and Thomas Nichols were at the house rented by defendant on Sunday morning, September 15. Thomas Nichols, a son of Skidmore Nichols, was there and was going to Billy Terry's, and was requested by Joseph Terry to go to his home and feed his dog. When Thomas Nichols entered the house of Joseph Terry, about 12:45, he went into the house through the back door. He sat down to write a letter and smelled something peculiar. He opened the window blind in the room, the shade was down, and when he opened the blind he saw a man's foot, and when he opened the door he saw his father-dead. Blood and brains were up and down the ceiling overhead and blood dripping on the floor. That evening Skidmore Nichols' wife and defendant Charles Perry were at Perry's own house. Perry was on the bed, Skidmore Nichols' wife was lying across the bed, and Joseph Terry was on the floor.

Thomas Nichols testified, in part: "Joseph Terry asked me in the presence of Perry to get Joe Ben Godwin to swear he stayed at his house on Saturday night, he and Perry."

Dr. L. K. Walker, an expert, testified in part: "The body was the body of Skidmore Nichols. The body was found on the floor in the middle of the room just out from the bed. The man was lying on his back and Sheriff Parker and myself turned him over and the whole top of his skull was blown off and his brains were blown on the floor and scattered around the room and house. Pieces of his skull was found in an adjoining room. The door was open between the two rooms. The feet of the dead man were six or eight feet from the adjoining room. In the examination of the room I found blood and pieces of flesh on the ceiling and the brains and part of the hair were blown up in the ceiling of the room. I found the man lying on the floor, his brains shot out. His skull blown all to pieces, his brain tissue scattered about the ceiling and floor, his skull bones partly in an adjoining room, scattered shot all around on the bed near where the man was lying and on the floor. One thing peculiar was I didn't find any scars on the man anywhere except where the load carried his skull clean off. He was shot with a gun. I have an opinion satisfactory to myself where the load of shot entered the head. It entered in the back and took the whole top of it off clean. He was shot from a lower angle than from where he was sitting. I think he was shot with number four shot."

Sheriff C. W. Parker testified, in part:

"From the appearance of the wound in the head, it looked like he was shot from a lower angle from where he was sitting or standing. I examined a window there and saw the pane was out. It was just a glass of one part of the pane, I would say, about six inch pieces out of the glass. From where that pane was out and the position of the body in the house I would think the shot went through the pane from the outside of the house. He was lying on his back when I first saw him with his head towards the broken out window pane. * * * When we arrived at the house of Charles Perry we walked in the house and went in the room on the left side and found on the bed Charles Perry and Mrs. Nichols and over in the corner of the same room I found Joseph Terry. * * *

Q. Now, before you said anything to anyone at that place, what, if anything, was said by anyone in the presence of Perry in respect to Mr. Nichols? Ans. I guess it was the middle size boy of Mrs. Nichols as I walked out of the door with Perry and Sergeant Welch, this boy ran up behind me and asked if his daddy was dead sure enough. * * * I found blood on Perry's clothes. His clothes were dirty, sweaty and looked like they had been wet. That is the shirt he had on. I found blood on that shirt. Several places on the front. They were cut off. He had on a hat. There was blood on it. He had on an apron to the overalls. At that time bits of flesh and pieces of hair were on the apron of the overalls. * * * The ceiling had bits of brain, hair and flesh on it. The blood had dripped down by the window on the floor. A lot of shot were on the floor on the back side and also the gun wadding. * * * I did not see any other sign or mark of violence on the body of the deceased besides the shot in the head. * * * I found the gun in a rack over the door leading to the back porch and to the kitchen. There was no empty shell in the gun. This is the gun you hand me. It was hanging on two hooks over the door leading to the back porch from the other room in which he was killed, the room nearer Winton. He was killed in the room nearer Union. I found this loaded shell in the same room I found the gun in. The number of the shot is on the shell. They are number four shot. * * *

Q. Sheriff, was any threat made towards Mr. Perry? Ans. None whatsoever.

Q. Was any inducement made to him? Ans. No, sir, I told Mr. Perry I was not offering to do anything for him and he could not hope for any reward and he made that statement. The conversation made to me by the defendant was made yesterday in jail. He sent for me and said he wanted to...