State v. Wagoner
| Decision Date | 25 February 1959 |
| Docket Number | No. 721,721 |
| Citation | 107 S.E.2d 83,249 N.C. 637 |
| Parties | STATE v. G. Thurman WAGONER. |
| Court | North Carolina Supreme Court |
Malcolm B. Seawell, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.
Emerson T. Sanders, Burlington, for defendant-appellant.
The defendant contends the evidence before the jury was sufficient to present the question whether the killing was unintentional--the result of an accident. The court did not charge the jury upon that feature of the case. The Attorney General, on the argument, frankly conceded that if the evidence is sufficient to raise the issue of fact, whether the killing was accidental, the court's failure to charge with respect thereto is reversible error. Special prayer for the instruction was not required. State v. Brady, 236 N.C. 295, 72 S.E.2d 675; State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53.
The evidence in the case disclosed the deceased was killed by a pistol shot fired while the weapon was in the hand of the defendant--the father of the deceased. The defendant is 70 years old. The deceased was 48. The defendant, the deceased, and the latter's wife lived in the same house. On the fatal day all were drinking. The deceased and the defendant engaged in a quarrel. There was evidence the deceased threatened to assault the defendant and that on previous occasions he had actually done so--twice with a weapon--always when one or both were drinking. The State offered evidence, including a statement made by the defendant to the investigating officer, tending to show the shooting was intentional.
The evidence was ample to go to the jury on the charge of murder in the second degree--a killing which proximately resulted from the intentional shooting with a pistol. State v. Adams, 241 N.C. 559, 85 S.E.2d 918; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322; State v. Debnam, 222 N.C. 266, 22 S.E.2d 562. But there was also evidence tending to show the shooting was accidental. The defendant testified:
The defendant's plea of not guilty entitled him to present evidence that he acted in self-defense, that the shooting was accidental, or both. Election is not required. The defendant may rely on more than one defense. When a case of murder in the second degree is made out, the defendant 'must establish to the satisfaction of the jury (State v. Willis, 63 N.C. 26) the legal provocation which will take from the crime the element of malice and thus reduce it to manslaughter, or which will excuse it altogether on the ground of self-defense,...
To continue reading
Request your trial
-
State v. Rogers
...testimony were matters bearing on the weight the jury would give Dekeyser's testimony, not on its admissibility. See State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83 (1959). Defendant Rogers next asserts that the trial court improperly admitted the testimony of Robert Holmes. Rogers assails Ho......
-
State v. Beach
...the milder offense even when there is no specific prayer for such charge. State v. Riera, 276 N.C. 361, 172 S.E.2d 535; State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83. Here, the jury returned a verdict of not guilty of the greater offense which was tantamount to a verdict of not guilty of al......
-
State v. Phillips, 745
...killed the deceased with a deadly weapon.' State v. Phillips, 229 N.C. 538, 539, 50 S.E.2d 306, 306; accord, State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83; State v. Crisp, 244 N.C. 407, 94 S.E.2d 402, 67 A.L.R.2d 236; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322; State v. Burrage, 223 N.C. ......
-
State v. McCoy, No. COA09-827 (N.C. App. 6/1/2010), COA09-827.
...the shooting was accidental, or both," because "[e]lection [between self-defense and accident] is not required," State v. Wagoner, 249 N.C. 637, 639, 107 S.E.2d 83, 85 (1959), Defendant simply failed to elicit any evidence that the decedent's death resulted from an accident. See State v. Ho......