State v. Redman

• Decision Date: 01 May 1940
• Docket Number: 362.
• Citation: 8 S.E.2d 623,217 N.C. 483
• Parties: STATE v. REDMAN.
• Court: North Carolina Supreme Court

8 S.E.2d 623

217 N.C. 483

STATE v. REDMAN.

No. 362.

Supreme Court of North Carolina

May 1, 1940

Criminal prosecution tried on a bill of indictment which charged the defendant with the murder of one Carl Smith.

There is evidence tending to show that the deceased went to the place of business of the defendant about 1 A.M. on October 4 1939, after the defendant had closed his filling station and while he was working on his books. The defendant admitted the deceased who asked the defendant to call a taxi. Some difficulty arose during which each assaulted the other. They apparently became reconciled and they started out of the building. While the defendant was locking the door to his building he was struck by the deceased and during the resulting scuffle defendant shot the deceased. The defendant testified that, at the time he shot, the deceased had him on the ground and was choking him. There was likewise evidence tending to show that the deceased was shot in the abdomen and that he died two days later as a result thereof.

The Solicitor elected to waive the first degree murder charge and place the defendant on trial for murder in the second degree. The jury returned a verdict of guilty of murder in the second degree. From judgment pronounced thereon, defendant appealed.

Hayden Clement, of Salisbury, and L. T. Hartsell, of Concord, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton Asst. Attys. Gen., for the State.

BARNHILL Justice.

The court in its charge to the jury made the following statement "Now the defendant in this case, Gentlemen of the Jury admits the killing with a deadly weapon and attempts to justify the killing by his plea of self-defense and evidence which he insists and contends should satisfy you that he killed the deceased, not with malice and not unlawfully, but killed the deceased in the proper self-defense of his life and person; therefore, the court will give you certain rules of law applicable to the plea of self-defense as entered in this case by the defendant."

And again later in the charge the court stated: "Now, Gentlemen of the Jury, the defendant in this case while upon the stand testified in his own behalf, and his counsel have argued to you and admitted in their arguments to you, that the defendant killed the deceased with a deadly weapon to wit: a pistol, nothing else appearing that would make the defendant guilty of murder in the second degree."

These excerpts from the charge are made the subject of exceptive assignments of error.

The defendant entered a plea of not guilty and it does not appear from the record that this plea was thereafter withdrawn or modified by the defendant or his counsel. There was no formal plea of self-defense but the defendant did offer evidence for the purpose of showing that he did not shoot the deceased with malice and that he shot under circumstances which made his act excusable and not unlawful.

The defendant, while a witness in his own behalf, testified that he shot the deceased. The State likewise offered the evidence of two police officers who testified that the defendant made similar statements to them. However, we have searched the record in vain for any statement by the defendant while on or off the witness stand which would constitute an admission that he killed the deceased. Non constat it is admitted that the defendant shot the deceased, it does not follow of necessity that he inflicted a fatal wound. The burden of so showing rested upon and remained with the State throughout the trial.

We may concede that when the court below stated to the jury...