State v. Tyndall

• Decision Date: 23 March 1949
• Docket Number: 221.
• Citation: 52 S.E.2d 272,230 N.C. 174
• Parties: STATE v. TYNDALL.
• Court: North Carolina Supreme Court

52 S.E.2d 272

230 N.C. 174

STATE v. TYNDALL.

No. 221.

Supreme Court of North Carolina

March 23, 1949

Criminal prosecution on indictment charging the defendant with the murder of one Fred Norris.

The defendant operates a barber shop, and his wife a cafe, known as Ju Bill's Place, in connection with their home on the Dunn-Erwin Highway in Harnett County. Around 7 o'clock on Sunday evening, 5 September, 1948, Fred Norris came to the cafe and wanted an order of fried chicken in which Mrs Tyndall specialized. Norris was drinking and a controversy ensued between him and the defendant.

The State's evidence tends to show that the defendant struck Norris with his first, knocked him to the ground in front of the cafe, kicked and stomped him about the face and head causing brain hemorrages which resulted in his death.

The defendant testified that he struck the deceased only with his fists, in self-defense; that he did not kick him while down, and that his death was unexpected. He was unable to account for the lacerations about the face and head of the deceased.

Verdict Guilty of manslaughter.

Judgment Imprisonment in the State's Prison for not less than 15 nor more than 20 years.

The defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and Ralph M. Moody, Asst. Atty. Gen., for the State.

Wilson & Johnson and Neill McK. Salmon, and of Lillington, for defendant.

STACY Chief Justice.

The only exceptive assignment of error discussed in appellant's brief is the one addressed to the following portion of the charge:

'If you find from evidence beyond a reasonable doubt, that on this night, the 5th of September 1948, the defendant unlawfully did assault and kill the deceased Norris with malice, it would be your duty to render a verdict of guilty of murder in the second degree; but if you have a reasonable doubt of that and (if you find that on the night in question, the 5th of September 1948, at Ju Bill's Place the defendant committed an assault upon the deceased and inflicted upon him wounds which caused his death, it would be your duty to return a verdict of guilty of manslaughter).' Defendant excepts to portion in parenthesis.

The vice of this instruction, it is contended, consists not in its substantive features but in the failure to require the prosecution to establish the elements of manslaughter beyond a reasonable doubt.

At the outstart of the court's charge he told the jury that the defendant entered upon the trial with the common-law presumption of innocence in his favor and that the prosecution had the burden of establishing his guilt beyond a reasonable doubt. State v. Grass, 223 N.C. 31, 25 S.E.2d 193. Then again at the beginning of the instruction here assigned as error, the prosecution was correctly assigned the burden of proof, withn the proper intensity, and we apprehend the jury must have understood the same rule applied to both degrees of an unlawful homicide then under...