State v. Shook

• Court: North Carolina Supreme Court
• Writing for the Court: SEAWELL, Justice
• Citation: State v. Shook, 224 N.C. 728, 32 S.E.2d 329 (N.C. 1944)
• Decision Date: 13 December 1944
• Docket Number: No. 659.,659.
• Parties: STATE. v. SHOOK.

32 S.E.2d 329

224 N.C. 728

STATE.

v.SHOOK.

No. 659.

Supreme Court of North Carolina.

Dec. 13, 1944.

Appeal from Superior Court, Cumberland County; Richard D. Dixon, Special Judge.

Roy E. Shook was convicted of assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death, and he appeals.

No error.

The defendant was indicted under a bill charging him with a felonious secret assault on one Jasper Holland, with a deadly weapon, with intent to kill, inflicting serious injury. He was found guilty of assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death, and sentenced to State Prison for the term of three years.

The evidence upon the trial may be summarized as follows:

Holland, with other officers, went to the home of the defendant, late in the night, to arrest him on a criminal charge under authority of a warrant then in their possession. The warrant was not in evidence, and it does not appear what crime was charged against the defendant. They searched the dwelling for him, and not finding him there, repaired to a garage, which was dug out in the hillside under the dwelling, with the front, or entrance, curtained, the curtain so divided that upon entrance of the car it would open and drop back together behind the car. Holland entered, began flashing his light around the garage, and while he was turned back toward the entrance, a gun was fired from within the garage, resulting in eleven shot wounds in Holland's hip, from which he bled freely. Holland was taken to the hospital and treated. The remaining officers returned to defendant's place, and failing to find him, "fired" tear gas into the garage.

Later, the defendant, when asked why he shot Holland, replied that he did not know "who he had shot." When arrested later and asked to go along with the officer, Shook said, "No, " that he thought he would skip the country for awhile, but did not resist arrest. The defendant stated that the tear gas had made him sick and that he vomited blood all next day, but that he would have died before he would have come out. He asked the officer how the man he had shot was getting along.

There was evidence, to which defendant objected, that some nine or ten months before the shooting, defendant had said, "they would send the God damned law up there if they wanted to, but he would kill them if they would come." That was in September 1943. To admission of this evidence defendant excepted.

The defendant lodged an exception to the charge for that the jury was not instructed that if they found the defendant had no intent to kill, they might find him guilty of a less offense--or, as the assignment of error puts it, "of assault with a deadly weapon."

With respect to circumstantial evidence involved in the case, the following instruction was given to the jury:

"The State relies in this case upon what is known as circumstantial evidence, which is the proof of various facts or circumstances which usually attend the main fact in dispute, and therefore, tends to prove its existence or to sustain by their consistencies the hypothesis of claim. Circumstantial evidence consists in reasoning from facts, which are known or proved, to establish such facts which are conjectured to exist. This must be proven to you, and beyond a reasonable doubt by the State, before this man can be found guilty."

To this defendant excepted.

The defendant further excepted to the charge as a whole because, since it did not appear affirmatively that the officers had a warrant charging a breach of the peace or graver crime, the court should have instructed the jury that the officers were trespassers and were not justified in breaking into defendant's home to arrest him.

Upon this conviction and sentence as above stated, defendant appealed.

Harry McMullan, Atty. Gen., and Hughes J. Rhodes and Ralph Moody, Asst. Attys. Gen, for the State.

Robert H. Dye, of Fayetteville, for defendant, appellant.

SEAWELL, Justice.

1. The first challenge which the appeal makes to the validity of the trial is theadmission, over objection, to threats made by defendant against officers of the law, as a class, in September preceding the trial in the following August. This threat is, in a peculiar way, anticipatory of what happened the following June: "* * * they would send the G-d---- law up there if they wanted to, but he would kill them if they did come."

Ordinarily, remoteness in time in the making of a threat otherwise admissible does not render it incompetent as evidence, but only goes to its weight and effect. State v. Payne, 213 N.C. 719, 725, 197 S.E. 573. This Court has not, in any case, fixed a limit on the time within which such threat would become inadmissible. Under varying conditions it has found threats six months, nine months, one year, two years old, and more, admissible, especially when those more remote are repeated within a more recent period. State v. Payne, supra, and cases cited; State v. Howard, 82 N.C. 623, 624; State v. Exum, 138 N.C. 599, 50 S.E. 283; State v. Wi-shon, 198 N.C. 762, 153 S.E. 395. Nine months, as in the present case, have not been regarded as rendering the evidence incompetent; State v. Exum, supra; and as pointed out in State v. Johnson, 176 N. C. 722, 97 S.E. 14, in State v. Howard, supra, threats made twelve months prior to the homicide were admitted without evidence of continuing threats. While the objection to the evidence was not on the ground that it was not directed against Holland personally, it is well to note that it was directed toward a class to which he belonged--that is, officers of the law. State v. Payne, supra. The evidence was competent. In this connection we think it immaterial that the judge referred to the officers as police officers.

2. The instruction regarding circumstantial evidence, quoted in full in the statement, while not sufficiently clear and exact to be approved as a model, does not disclose prejudicial error--at least the assignment of error made by the appellant is untenable. The objection is that the Judge did not add to the instruction given that, in order to justify a verdict of guilty, the circumstantial evidence must "exclude every reasonable hypothesis of innocence." That, indeed, it must do; but after all, the convincing effect of circumstantial evidence on the mind of the jury is measured by the same standard of intensity required of any other evidence--the jury must be convinced beyond a reasonable doubt as to every element of the crime before they find the defendant guilty of it, whether the evidence is wholly circumstantial, only partly so, or entirely what we sometimes refer to as direct. No set formula is required to convey to the jury this fixed principle relating to the degree of proof required for conviction.

The instruction adopts the formula most often used and to which we sooner or later all refer--proof beyond a reasonable doubt. State v. Crane, 110 N.C. 530, 15 S.E. 231; State v. Flemming, 130 N.C. 688, 41 S.E. 549; State v. Wilcox, 132 N.C. 1120, 44 S.E. 625; State v. Adams, 138 N.C. 688, 50 S.E. 765; State v. Neville, 157 N.C. 591, 72 S.E. 798; State v. Willoughby, 180 N. C. 676, 103 S.E. 903.

In State v. Adams, supra, discussing proof by circumstantial evidence, it is said :

"Nor did the court err in refusing to give the first prayer for instruction. There is no particular formula by which the court must charge the jury upon the intensity of proof. 'No set of words is required by the law in regard to the force of circumstantial evidence. All that the law requires is that the jury shall be clearly instructed that unless, after due consideration of the evidence, they are "fully satisfied" or "entirely convinced" or "satisfied beyond a reasonable doubt" of the guilt of the defendant, it is their duty to acquit, and every attempt on the part of the courts to lay down a "form...