State v. Walters

• Decision Date: 19 November 1969
• Docket Number: No. 32,32
• Citation: 170 S.E.2d 484,275 N.C. 615
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Mitchell Grant WALTERS.

Page 484

170 S.E.2d 484

275 N.C. 615

STATE of North Carolina v. Mitchell Grant WALTERS.

No. 32.

Supreme Court of North Carolina.

Nov. 19, 1969.

Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., Andrew A. Vanore, Jr., Raleigh, Staff Atty., Burley B. Mitchell, Jr., Staff Atty., for the State.

Joe Hill Barrington, Jr., Lumberton, Nance, Collier, Singleton, Kirkman & Herndon, by James R. Nance, Fayetteville, for defendant.

HIGGINS, Justice.

The tragedy described by the evidence may have had its inception in the misconduct of the deceased in making improper advances to the defendant's wife by following her automobile, blowing his horn, and making signs which she construed as an invitation for her 'to follow him off some place'. On the other hand, Mrs. Walters may have misconstrued the conduct of the deceased. As she passed his filling station on her way home from the drugstore, the deceased left the station and entered the street behind her as she drove by. She was on her way home. He probably was on his way home for lunch. They lived within two blocks of each other. His way home, and hers, would naturally be the same except for the last few blocks. That Mrs. Walters may have misconstrued the conduct of the deceased would not necessarily affect the defendant's reaction to it. She was frightened and upset. Her conclusions were that the intentions of the deceased were improper. However, if his actions and intentions were misconstrued, his reaction would not be conciliatory when accused by the armed husband, and upon his denial, called a liar. The deceased's side of the story must remain untold.

The defendant contends the court, in the trial, committed errors in the exclusion of evidence which were sufficiently prejudicial to entitle him to a new trial. By way of explaining his possession of the pistol on Sunday, and while he was out of uniform and off duty, he called the Chief of Police who testified that police officers were subject to call at all times and while off duty were permitted, but not required to carry their arms. The defendant testified it was his habit to carry his arms at all times. He undertook to testify as to the teachings of the Institute of Government with respect to the right of peace officers to be armed while off duty. The trial court excluded the evidence apparently on the ground it violated the hearsay rule. State v. Lassiter, 191 N.C. 210, 131 S.E. 577; State v. Reid, 178 N.C. 745, 101 S.E. 104. What the defendant understood to be the teachings of some unidentified instructor could add little, if anything, to the rules of the Lumberton Police Department, of which he was a member. The defendant had the benefit of the rule which permitted him to go armed when off duty, at his option.

As to the right of the defendant to be armed, we may assume that Judge Hall instructed the jury fully and correctly. The court's charge is not a part of the case on appeal. The defendant's counsel omitted it from our view. At the time of the difficulty, the defendant did not claim to be acting as an officer, but as he said, 'one citizen to another'. The exclusion of teachings at the Institute of Government cannot be held to be prejudicial error. The other assignments of error based on the admission or exclusion of evidence have been examined and have been found to be without merit. Likewise without merit is the objection the court permitted the State to offer rebuttal evidence after the defense had rested.

The main thrust of the defendant's objection to the trial is directed to the court's action in submitting to the jury the issue of murder in the first degree. Specifically, the defendant contends the evidence was insufficient to show premeditation and deliberation and the court should have withdrawn the capital charge from the jury. What is evidence is a question of law for the court. What the evidence proves or fails to prove is a question of fact for the jury. The court decides competency; the jury decides weight. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, and many cases cited.

In order properly to fulfill its duty, the trial court must determine the preliminary question whether the evidence, in its light most favorable to the State, is sufficient to permit the jury to make a legitimate inference and finding that the defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished the purpose. 'No fixed length of time is required for the mental processes of premeditation and deliberation constituting an element of the offense of murder in the first degree, and it is sufficient if these processes occur prior to, and not simultaneously with, the killing.' Strong's N.C.Index, 2d Ed., Vol. 4, p. 196 (see Homicide, Murder in the First Degree, Premeditated and Deliberate).

Premeditation and deliberation are not usually susceptible of direct proof, and are therefore susceptible of proof by circumstances from which the facts sought to be proved may be inferred. State v. Watson, 222 N.C. 672, 24 S.E.2d 540; State v. Evans, 198 N.C. 82, 150 S.E. 678. 'Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: Want of provocation on the part of deceased. State v. Matheson, 225 N.C. 109, 111, 33 S.E.2d 590; State v. Hammonds, 216 N.C. 67, 75, 3 S.E.2d 439; State v. Buffkin, 209 N.C. 117, 126, 183 S.E. 543. The conduct of defendant before and after the killing. State v. Lamm, 232 N.C. 402, 406, 61 S.E.2d 188; State v. Chavis, 231 N.C. 307, 311, 56 S.E.2d 678; State v. Harris, ...