State v. Rummage

• Court: North Carolina Supreme Court
• Writing for the Court: BRANCH
• Citation: State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (N.C. 1971)
• Decision Date: 15 December 1971
• Docket Number: No. 66,66
• Parties: STATE of North Carolina v. Winfred Allen RUMMAGE.

Page 221

185 S.E.2d 221

280 N.C. 51

STATE of North Carolina v. Winfred Allen RUMMAGE.

No. 66.

Supreme Court of North Carolina.

Dec. 15, 1971.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Lester V. Chalmers, Jr., for the State.

Coble, Morton & Grigg by Ernest H. Morton, Jr., Albemarle, for defendant.

BRANCH, Justice.

Defendant contends that the trial judge erred by failing to apply evidence offered as to deceased's violent character to the question of defendant's reasonable apprehension of death or great bodily harm from the alleged attack by deceased.

This question was considered by the Court in the case of State v. Riddle, 228 N.C. 251, 45 S.E.2d 366. There defendant introduced evidence that deceased was a man of violent character, and the trial judge, in his charge, failed to explain the effect that such reputation might have upon defendant's reasonable apprehension of death from the attack, to which his evidence pointed. Before the formal charge to the jury and during the trial, the trial judge stated:

'Gentlemen of the jury, yesterday the defendants in this case offered evdience tending to show that the deceased man, Andrew Hoyle, was a man of dangerous and violent character. Where defense interposed is that of self-defense, such evidence is competent. Evidence of the general reputation of the deceased is not competent or material in the case, but as the Court has stated, where the defendant interposed his self-defense, then it is proper to show that the deceased was a man of dangerous and violent character.'

This Court held that the failure to charge on the violent character of deceased resulted in prejudicial error notwithstanding the absence of a request for special instructions.

In instant case there was plenary evidence that deceased was a dangerous and violent man when he was intoxicated. There was also evidence that he was intoxicated at the time he was fatally shot. The trial judge failed to charge as to the bearing the reputation of deceased as a violent man might have had on defendant's reasonable apprehension of death or great bodily harm at the time deceased allegedly attacked or threatened to attack defendant. This was error.

Nevertheless, we are reluctant to hold that this error, standing alone, constituted reversible error, since the trial judge had otherwise fully charged on self-defense. We therefore consider other portions of the charge which defendant assigns as error.

Defendant's Assignment of Error No. 4 is that 'The court erred in charging the jury that voluntary manslaughter was an intentional killing . . ..'

Involuntary manslaughter is the unintentional killing of a human being without malice, premediation or deliberation, which results from the performance of an unlawful act not amounting to a felony, or not naturally dangerous to human life; or from the performance of a lawful act in a culpably negligent way; or from the culpable omission to perform some legal duty. State v. Honeycutt, 250 N.C. 229, 108 S.E.2d 485; State v. Satterfield, 198 N.C. 682, 153 S.E. 155.

Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation. State v. Wynn, 278 N.C. 513, 180 S.E.2d 135; State .v Downey, 253 N.C. 348, 117 S.E.2d 39; State v. Street, 241 N.C. 689, 86 S.E.2d 277.

Some confusion has arisen in this jurisdiction as to the definition of manslaughter because the court on occasion defines manslaughter without indicating whether it be voluntary manslaughter or involuntary manslaughter.

Defendant argues that voluntary manslaughter must be an uninstentional killing. In support of this contention he cites and relies on State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886. There the Court, Inter alia, stated:

'Evidence of manslaughter is lacking. The crime is defined as the unlawful killing of a human being without malice, express or implied, without premeditation and deliberation, And without the in tention to kill or to inflict serious bodily injury. State v. Kea, 256 N.C. 492, 124 S.E.2d 174; State v. Foust, 258 N.C. 453, 128 S.E.2d 889; State v. Benge, 272 N.C. 261, 158 S.E.2d 70.' (Emphasis ours)

The quotation from Roseboro appears to define involuntary manslaughter. The authorities there cited do not purport to define voluntary manslaughter.

In State v. Baldwin, 152 N.C. 822, 68 S.E. 148, Hoke, J., speaking for the Court, stated:

'. . . Manslaughter is the unlawful killing of another without malice, and, under given conditions, this crime may be established, though the killing has been both unlawful and intentional. Thus, if two men fight upon a sudden quarrel and on equal terms, at least at the outset, and in the progress of the fight one kills the other, Kills in the anger naturally aroused by the combat, this ordinarily will be but manslaughter. In such case, though the killing may have been both unlawful and intentional, the passion, if aroused by provocation which the law deems adequate, is said to displace malice and is regarded as a mitigating circumstance reducing the degree of the crime.' (Emphasis ours)

This Court has also recognized that under given circumstances a person may be justified in intentionally killing when he acts in self-defense. State v. Kirby, 273 N.C. 306, 160 S.E.2d 24. Yet, such person may be guilty of voluntary manslaughter when an intentional killing results from excessive use of force while he is acting in self-defense. State v. Cooper, 273 N.C. 51, 159 S.E.2d 305; State v. Wynn, supra. It follows that under the circumstances of this case it was not error for the trial judge to charge that 'Generally speaking, manslaughter is the intentional unlawful killing of a human being without malice, either express or implied, and without deliberation or premeditation.'

However, further examination of the charge reveals that the trial judge did not apply the law to the facts so as to clearly distinguish between manslaughter and second degree murder. In his final mandate to the jury the judge chose to use the vehicle of apparently standardized questions to meet the requirements of G.S. § 1--180. In this connection the record shows that the judge charged:

'Now, when you come to consider whether the defendant is guilty or innocent of the charge of murder in the second degree, I instruct you that you should ask these questions:

1. Did the deceased die as a result of any wound inflicted upon him by the defendant on or about the 19th day of January, 1971?

2. Did the defendant intentionally shoot and kill the deceased, Noah Mabry?

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