State v. Watson

• Decision Date: 06 May 1975
• Docket Number: No. 65,65
• Citation: 214 S.E.2d 85,287 N.C. 147
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Rufus Coley WATSON, Jr.

Page 85

214 S.E.2d 85

287 N.C. 147

STATE of North Carolina v. Rufus Coley WATSON, Jr.

No. 65.

Supreme Court of North Carolina.

May 6, 1975.

Wright T. Dixon, Jr., Raleigh, for defendant-appellant.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Raymond L. Yasser, Raleigh, for the State.

COPELAND, Justice.

Defendant has brought forward thirteen (13) of thirty-four (34) assignments of error in his brief, the others having been abandoned. Rule 28, Rules of Practice in the Supreme Court. Investment Properties v. Allen, 281 N.C. 174, 188 S.E.2d 441 (1972); Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29 (1968); Pendergrass v. Massengill, 269 N.C. 364, 152 S.E.2d 657 (1967).

Defendant contends in his first series of assignments (Nos. 25, 30 and 33) that the trial court erred in charging the jury as to the type of provocation that could mitigate the killing to voluntary manslaughter. Specifically, defendant excepted and assigned error to the following italicized portions of the court's charge:

(1) After summarizing the evidence, and prior to fully instructing on first-degree murder, the court stated: '(L)et me say here, that mere words will not form a justification or excuse for a crime of this sort . . ..'

(2) In instructing the jury on voluntary manslaughter, the court stated: '(T) he defendant must satisfy you that this passion was produced by acts of Samples which the law regards as adequate provocation. This may consist of anything which has a natural tendency to produce such passion in a person of average mind and disposition. However, words and gestures alone, where no assault is made or threatened, regardless of how insulting or inflammatory those words or gestures may be, does not constitute adequate provocation for the taking of a human life; . . .'

Defendant brings forward two distinct, yet closely related, arguments in support of these assignments. We shall proceed to consider these contentions in the order set forth in defendant's brief.

A. Mere Words as Sufficient Legal Provocation.

Defendant concedes that the above italicized portions of the court's charge represent a correct statement of the common law, accepted and recognized as the law of this State from the first reported cases. See, e.g., State v. Tackett, 8 N.C. 210, 219 (1820); State v. Merrill, 13 N.C. 269 (1829); State v. Hill, 20 N.C. 629, 635 (1839); State v. Jarrott, 23 N.C. 76, 82 (1840); State v. Barfield, 30 N.C. 344, 349 (1848); State v. Howell, 31 N.C. 485 (1849). See also 7 Encyclopedic Digest of N.C. Reports, Homicide § 39 (1918). Defendant further concedes that this rule is almost uniformly recognized throughout the United States. See, e.g., Annot., 2 A.L.R.3d 1292 (1965); 40 Am.Jur.2d Homicide § 64 (1968); 40 C.J.S. Homicide § 47 (1944). Nonetheless, defendant contends that the doctrine in this State has gradually evolved into a Per se rule that is not in accord with early judicial pronouncements of this Court. Therefore, he urges us to modify the present rule. In support of this contention, defendant relies heavily on language contained in the following three cases: State v. Norris, 2 N.C. 429 (1796); State v. Tackett, Supra; and State v. Jarrott, Supra.

Initially, we point out that State v. Norris, Supra, is not an opinion of this Court. It is simply a summarized report of the actual trial of defendant over which Judges Williams and Haywood jointly presided as circuit superior court judges. There were only four such judges in this State at that time and further there was no appellate court. See Clark, C.J., History of the Supreme Court of North Carolina, 177 N.C. 617, 619 (1919). The language defendant cites in his brief as the opinion of the court is merely Judge Haywood's charge to the jury. We note that in his separate charge, Judge Williams told the jurors that he disagreed with certain portions of the law as previously stated by Judge Haywood and proceeded to instruct in accord with his own views. Accordingly, under these particular facts, this reported proceeding has no precedential value.

On the other hand, both Tackett and Jarrott are decisions of this Court and both contain language that tends to support defendant's contention. However, the exceptions to the 'mere words' doctrine recognized in both cases are totally without relevance today. In any event, any language in these cases not in accord with the following statement of Justice Stacy (later Chief Justice), speaking for the Court in State v. Benson, 183 N.C. 795, 799, 111 S.E. 869, 871 (1922), is expressly overruled. 'The legal provocation which will reduce murder in the second degree to manslaughter must be more than words; as language, however abusive, neither excuses nor mitigates the killing, and the law does not recognize circumstances as a legal provocation which in themselves do not amount to an actual or threatened assault. (Citations omitted.)' This assignment of error as it relates to the mere words doctrine is overruled.

B. What Constitutes an Assault?

Defendant contends that since the trial court inserted the 'mere words' doctrine into its charge it constituted prejudicial error not to proceed further and charge on what he calls the law of assault from provoking language. Defendant relies on the following cases in support of this argument: State v. Perry, 50 N.C. 9 (1857); State v. Robbins, 78 N.C. 431 (1878); State v. Chavis, 80 N.C. 353 (1879); State v. King, 86 N.C. 603 (1882); State v. Fanning, 94 N.C. 940 (1886); Saunders v. Gilbert, 156 N.C. 463, 72 S.E. 610 (1911); State v. Kennedy, 169 N.C. 326, 85 S.E. 42 (1915); State v. Crisp, 170 N.C. 785, 87 S.E. 511 (1916); State v. Baldwin, 184 N.C. 789, 114 S.E. 837 (1922); State v. Strickland, 192 N.C. 253, 134 S.E. 850 (1926); State v. Maney, 194 N.C. 34, 138 S.E. 441 (1927); State v. Robinson, 213 N.C. 273, 195 S.E. 824 (1938); State v. Hightower, 226 N.C. 62, 36 S.E.2d 649 (1946); State v. Franklin, 229 N.C. 336, 49 S.E.2d 621 (1948); State v. McLawhorn, 270 N.C. 622, 155 S.E.2d 198 (1967). This contention has no merit. Furthermore, it is logically inconsistent with the rule that language, no matter how abusive, is never sufficient legal provocation to mitigate a homicide.

Many of the above cited cases involve the defendant's right to the benefit of perfect self-defense and deal specifically with the question of whether the defendant was at fault in bringing on the difficulty. The test, long employed in such cases, is whether the defendant used language Calculated and intended to bring on the fight. If he did, then he is deemed to have been at fault and loses the benefit of perfect self-defense. See, e.g., State v. Robinson, Supra; State v. Crisp, Supra; State v. Lancaster, 169 N.C. 284, 84 S.E. 529 (1915); State v. Rowe, 155 N.C. 436, 71 S.E. 332 (1911); State v. Fanning, Supra; State v. Davis, 80 N.C. 351 (1879); State v. Robbins, Supra; State v. Perry, Supra.

State v. Hightower, Supra, is an excellent example of the legal consequences of abusive language in this situation. In that case, defendant and deceased were both inmates confined in a prison camp located in Wilkes County. Sometime prior to the homicide, defendant had been placed in solitary confinement for a number of days. Defendant believed this confinement resulted from a report deceased had made to prison officials regarding alleged acts of sex perversion on his part. On the day of the killing, defendant came out into the prison yard where the deceased and others were passing a ball. He put his arm around the deceased and walked with him back into the cell block. Thereafter, defendant tripped and stabbed the deceased, and when, before dying, the deceased managed to get up and run to the sink, defendant caught up with him and stabbed him five or six more times, stating: 'G-- d--- you, I told you I was going to kill you.' Defendant contended that deceased had called him a 'G-- d--- black s.o.b.' and that this had provoked the assault. Defendant was tried before Judge Bobbitt (later Associate Justice and Chief Justice of this Court) at the August 1945 Session of Wilkes County Superior Court. Upon a verdict finding him guilty of first-degree murder, defendant appealed to this Court and assigned as errors, inter alia, the portion of the court's charge on the 'mere words' doctrine and the failure of the court to charge an excusable homicide. This Court, in an opinion by Justice Barnhill (later Chief Justice), affirmed the judgment and answered these contentions as follows:

'The court further instructed the jury 'that legal provocation that will reduce murder in the second degree to manslaughter must be more than mere words, for language, however abusive, neither excuses nor mitigates the killing,' and 'the law does not recognize circumstances as a legal provocation which in themselves do not amount to an assault or a threatened assault.' Such is the law in this jurisdiction. (Citations omitted.) Here it was the deceased and not the defendant who is alleged to have used abusive language and thus induced the assault which resulted in death. State v. Robinson, 213 N.C. 273, 195 S.E. 824; State v. Rowe, 155 N.C. 436, 71 S.E. 332; State v. Crisp, 170 N.C. 785, 87 S.E. 511.' 226 N.C. at 65, 36 S.E.2d at 651. (Emphasis supplied.)

These decisions establish the following rules as to the legal effect of abusive language: (1) Mere words, however abusive, are never sufficient legal provocation to mitigate a homicide to a lesser degree; and (2) A defendant, prosecuted for a homicide in a difficulty that he has provoked by the use of language 'calculated and intended' to bring on the encounter, cannot maintain the position of perfect self-defense unless, at a time prior to the killing, he withdrew from the encounter within the meaning of the law. These two rules are logically consistent and demonstrate that abusive language will not serve as a legally sufficient provocation for a homicide in this State.

These well-settled...