State v. Phillips, 745

• Decision Date: 02 June 1965
• Docket Number: No. 745,745
• Citation: 142 S.E.2d 337,264 N.C. 508
• Court: North Carolina Supreme Court
• Parties: STATE, v. Patricia McLawhorn PHILLIPS.

Page 337

142 S.E.2d 337

264 N.C. 508

STATE, v. Patricia McLawhorn PHILLIPS.

No. 745.

Supreme Court of North Carolina.

June 2, 1965.

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

Arthur Vann and Everett, Everett & Everett, Durham, for defendant, appellant.

SHARP, Justice.

About 9:00 p. m. on October 23, 1964, defendant killed her husband with one shot from a pistol as he sat in the driver's seat of an automobile parked in the driveway of their home. The deceased was drunk.

The State's evidence, ample to withstand defendant's motions for nonsuit, tends to show that defendant shot the deceased when he pushed her out of the automobile as she attempted to get in it. A deputy sheriff testified that when he arrived in response to a call defendant said to him, 'I shot my husband and you can do what you please with me, I don't give a _____ d_____'; that she said he would not let her do what she wanted to do, so she shot him; that she said, 'You can carry me to jail, do whatever you please.' So far as the record discloses defendant made this statement spontaneously without any questioning by the officer. The next morning the sheriff visited her in jail. He testified as follows:

'The next morning I told her, I said 'Mrs. Phillips, I want to ask you a few questions.' And I said 'You know what you tell me I can use it against you.' And she said 'I understand that.' And she said 'What do you want to know about it?' I said 'What did happen last night at your house?' She said most of the day they were drinking, she had some, and said Phillips was drunk, and said she was going out on the Fayetteville Road something around 8:45 or 9:00 o'clock to see a man there on the Fayetteville Road. She said she went out to the car and Phillips was sitting in the car, the company's car, and when she started in Phillips threw his hands up and pushed her out and she said she shot him. That was all there was to it.'

Defendant, without assigning any reason whatever, objected and excepted to the admission of the testimony of both the sheriff and the deputy sheriff. To be sure, this evidence was relevant, and no reason appears why it was not competent. The statements were freely and voluntarily made. Defendant was told that anything she said might be used against her. State v. Upchurch, 264 N.C. 343, 141 S.E.2d 528; State v. Egerton, 264 N.C. 328, 141 S.E.2d 515. Whether defendant was then represented by counsel the record does not disclose. The matter of counsel was not mentioned. It is implicit in this evidence, however, that defendant knew of her right to counsel. One of her character witnesses, an attorney of many years' experience, testified that he had represented her previously.

Defendant's evidence tends to show: She acquired the pistol for protection during the absence of her husband, a traveling salesman, from home. It had been registered with the Clerk of the Superior Court since December 30, 1953. Because of prowlers in the vicinity she never leaves the house after dark without the pistol. Her lot abuts upon a railroad track at the rear, and a number of large trees make the premises dark. On the night in question she put the pistol in her pocketbook when she left the house to go to her daughter's. Outside, she was surprised to find her husband in the car. She told him he had had too much to drink to drive and reached over to take the keys from the car. He shoved her backward, but she continued her efforts to get the keys. He jerked her violently, and she fell forward onto him. She did not hear the gun go off, but immediately observed him go limp. She straightway went into the house and said to her daughter, 'Honey, there's been a terrible accident. Our daddy's been shot. Call an ambulance and the sheriff.'

Defendant does not rely on self-defense. She contends that the shooting was entirely accidental. She testified: 'I am not contending or saying that I shot Harry in self-defense. If I pulled that trigger I know nothing about it.'

The trial judge charged the jury, inter alia, as follows:

'(W)hen the intentional killing of a human being with a deadly weapon is admitted, or is established by the evidence, the law then casts upon the defendant the burden of proving to the satisfaction of the jury, not by the greater weight of the evidence, nor beyond a reasonable doubt, but simply to the satisfaction of the jury, legal provocation that will rob the crime of malice, and thus reduce it to manslaughter, or that will excuse it altogether upon the ground of self-defense, accident or misadventure.' (Except for the use of the word intentional in the first line, this portion of the charge is taken almost verbatim from the opinion in State v. Benson, 183 N.C. 795, 111 S.E. 869.)

* * *

* * *

'Now, members of the jury, when you come to consider the guilt or innocence of the defendant on the charge of murder in the second degree, the Court instructs you that you must ask yourselves first these questions: First, did the deceased, Harry Phillips, die as a result of any would received by him on the occasion in question? Second, did the defendant. Patricia McLawhorn Phillips, shoot and kill the deceased, Harry Phillips? Third, did she kill him intentionally and did she kill him with a deadly weapon? If the State has satisfied you from the evidence and beyond a reasonable doubt that each and every one of these questions should be answered 'Yes,' then it would be your duty to return a verdict of guilty of murder in the second degree, unless the defendant has established to your satisfaction from the evidence offered by her, or from the evidence offered against her, the legal provocation which would take from the crime the element of malice and reduce it to manslaughter or which would excuse her altogether on the grounds of misadventure. (Assignment 81)

'So, if the State has satisfied you from the evidence and beyond a reasonable doubt that on the night of October 23, 1964, the defendant intentionally shot and killed the deceased, Harry Phillips, that she killed him with a deadly weapon, then the defendant would be guilty of murder in the second degree, and it would be your duty to return that as your verdict if the State has so satisfied you beyond a reasonable doubt, unless, as I have heretofore said, the defendant, Mrs. Phillips, has established to your satisfaction the legal provocation which will take from the crime the element of malice or which would excuse her altogether upon the grounds of misadventure or accident.' (Assignment 82)

A defendant's assertion that a killing with a deadly weapon was accidental is in no sense an affirmative defense shifting the burden of proof to him to exculpate himself from a charge of murder. On the contrary, it is merely a denial that the defendant has committed the crime, and the burden remains on the State to prove an intentional killing, an essential element of the crime of murder, before any presumption arises against the defendant. (Of course, accident will be no defense to a homicide committed in the perpetration of or in the attempt to perpetrate a felony. G. S. § 14-17.) To hold otherwise would impose conflicting burdens of proof on the same issue and create two irreconcilable rules pertaining to the same matter. The charge here, in effect, recognizes an intentional accident--an impossibility. In accident 'the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime.' 4 Blackstone, Commentaries 26 (12th ed., Christian's, London, 1795). Manifestly, if the State has satisfied the jury beyond a reasonable doubt that the shooting was intentional, a defendant could not thereafter establish to the satisfaction of the jury that it was accidential. In addition to posing a practical and logical impossibility, the charge robbed defendant of the presumption of innocence and the benefit of the requirement that the State prove each and every element of the offense. State v. Dallas, 253 N.C. 568, 117 S.E.2d 415; State v. Cephus, 239 N.C. 521, 80 S.E.2d 147.

"Where the death of a human being is the result of accident or misadventure, in the true meaning of the term, no criminal responsibility attaches to the act of the slayer. Where it appears that a killing was unintentional, that the perpetrator acted with no wrongful purpose in doing the homicidal act, that it was done while he was engaged in a lawful enterprise, and that it was not the result of negligence, the homicide will be excused on the score of [the] accident.' 26 Am.Jur., Homicide, s. 220, p. 305. The negligence referred to in the foregoing rule of law has been declared by this Court to mean something more than actionable negligence in the law of torts. It imports wantonness, recklessness or other conduct, amounting to culpable negligence.' State v. Faust, 254 N.C. 101, 112, 118 S.E.2d 769, 776, 96 A.L.R.2d 1422. (The Court used this language in Faust in holding that there was no evidence of an accidental killing; it was not speaking directly to the problem of whether accident is a matter in denial or in affirmative defense.)

'The plea of accidental homicide, if indeed it can be properly called a plea, is certainly not an affirmative defense, and therefore does not impose the burden of proof upon the defendant, because the state cannot ask for a conviction unless it proves that the killing was done with criminal intent.' State v. Ferguson, 91 S.C. 235, 244, 74 S.E. 502, 505. 'It is the duty of the state to allege and prove that the killing, though done with a deadly weapon, was intentional or willful. * * * (T)he claim that the killing was accidential goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable doubt.' State v. Cross, 42 W.Va. 253, 258, 24 S.E. 996, 997. Accord, State v. Matheson, 130 Iowa 440, 103 N.W. 137; State v....