State v. Winford
| Decision Date | 10 June 1971 |
| Docket Number | No. 110,110 |
| Citation | 279 N.C. 58,181 S.E.2d 423 |
| Parties | STATE of North Carolina v. Grady DeLaney WINFORD. |
| Court | North Carolina Supreme Court |
Atty. Gen. Robert Morgan, Asst. Atty. Gen. William F. Briley, and Walter E. Ricks, III, Associate Atty., Raleigh, for the State.
Collier, Harris & Homesley, Mooresville, by Richard M. Pearman, Statesville, and Walter H. Jones, Jr., Mooresville, for defendant.
Defendant assigns as error the admission into evidence, over objection, of a small pen knife allegedly found on the body of deceased. Defendant argues that the State failed to lay the necessary foundation before offering the knife into evidence and that the trial judge failed to 'adequately discuss the evidence as to the knife.' The record shows the following:
Any evidence which is relevant to the trial of a criminal action is admissible. State v. Macklin, 210 N.C. 496, 187 S.E. 785. However, when real evidence (i.e., the object itself) is offered into evidence, it must be properly identified and offered. State v. Eagle, 233 N.C. 218, 63 S.E.2d 170.
In Stansbury, North Carolina Evidence, § 26, p. 47, it is stated:
'* * * Even if the evidence to be offered is a tangible object, such as a writing, a weapon, or a photograph, it must first be authenticated or 'identified' by a witness, and this can be done only by presenting the object to the witness and asking him if he recognizes it and, if so, what it is.'
In instant case defendant testified that he shot deceased in self-defense because deceased was attacking him with a long-bladed 'Barlow' knife. The 'Barlow' knife was not produced at the trial. Thus, the knife found on the person of deceased contradicted testimony of defendant and was relevant to the trial of this criminal action.
Although the procedures approved for introduction of real evidence were not strictly followed, the knife was sufficiently identified before it was offered. Even had there been error in the former introduction of the knife, it would not have been prejudicial since Police Officer Burnett testified, without objection, that the small pen knife was found on the person of deceased, and he described the knife in detail. The admission of evidence, over objection, where testimony of the same import has been previously introduced without objection, is ordinarily not prejudicial error. State v. Jarrett, 271 N.C. 576, 157 S.E.2d 4; State v. Creech, 265 N.C. 730, 145 S.E.2d 6.
The trial judge did not commit error in allowing the pen knife to be introduced into evidence.
Defendant assigns as error the Court's definition of second degree murder as contained in the following portion of the charge:
(C) When it is admitted or proven that the defendant Intentionally killed the deceased with a deadly weapon, or that the defendant intentionally inflicted the wound which--with a deadly weapon, that directly resulted in the death of the deceased, the law raises two presumptions against the defendant. First of all, it raises the presumption that the killing was unlawful, and, second, the law raises the presumption that it was done with malice. And an unlawful and intentional killing with malice is murder in the second degree. And, when that is shown, the law places upon the defendant the burden of proof and to the satisfaction of the jury, not by the weight, the greater weight of the evidence and not beyond a reasonable doubt, but simply to the satisfaction of the jury, that legal provocation that will derive the term of 'malice' and thus reduce it to manslaughter, or if it disproves it altogether on the ground of self-defense. (D) Defendant EXCEPTS to that portion of the charge between (C) and (D).
(E) In an intentional killing, if it is established that the killing was from intentional use of a deadly weapon, then the defendant is guilty of murder in the second degree, unless he can satisfy the jury of the truth of the facts which justify his act and mitigate it to manslaughter. The burden is on the defendant to establish the facts to the satisfaction of the jury, unless they arrive out of the evidence, that he is speaking the truth. (F)
Defendant EXCEPTS to that portion of charge between (E) and (F).
As to the offense charged, (G) (I)f the defendant, out of anger, because of ill will or malice which he harbored against the deceased, unlawfully, that is without justifiable or legal excuse, intentionally shot the deceased with a .25 caliber automatic pistol, and killed the deceased, then the defendant would be guilty of murder in the second degree; and if the jury shall so find beyond a reasonable doubt, it would be the duty of the jury to return a verdict of guilty of murder in the second degree. (H)
Defendant EXCEPTS to that portion of charge between (G) and (H).
In determining the guilt or innocence of the defendant as to that charge, it is the duty of the jury to consider all of the evidence, facts and circumstances growing out of the evidence, if you find and--if you find from the evidence and beyond (I) a reasonable doubt that the defendant intentionally shot the deceased in the chest with a .25-caliber automatic pistol, a deadly weapon, and that he killed the deceased, or that the defendant intentionally, with a deadly weapon, inflicted the wound which resulted in the death of the deceased, he is presumed to be guilty of murder in the second degree. (J)
Defendant EXCEPTS to that portion of charge between (I) and (J).
An unlawful killing with malice is murder in the second degree. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328.
If the State satisfies the jury beyond a reasonable doubt that a defendant intentionally used a deadly weapon and thereby caused the death, then two presumptions arise: (1) that the killing was unlawful, and (2) that it was done with malice; And nothing else appearing, the defendant would be guilty of murder in the second degree. State v. Propst, 274 N.C. 62, 161 S.E.2d 560; State v. Mercer, supra.
The correct principles of law concerning these presumptions were stated in State v. Gordon, 241 N.C. 356, 85 S.E.2d 322, where Bobbitt, J. (now C.J.), speaking for the Court, stated:
In instant case the trial judge in the challenged portion of the charge stated that 'when it is admitted or proven that defendant Intentionally killed the deceased with a deadly weapon * * * the law raises two presumptions * * *' In the same paragraph the Judge charged correctly. The challenged definition does not conform to the one approved by this Court; however, the erroneous definition, standing alone, does not constitute prejudicial error since the definition complained of placed upon the State the added burden of proving a specific intent to kill. This is patently favorable to defendant, and defendant cannot ordinarily complain of instructions favorable to him. State v. Price, 271 N.C. 521, 157 S.E.2d 127. The only possible vice in this instruction is that the giving of almost contemporaneous instructions--one correct and one incorrect--may have caused confusion in the minds of the jurors.
Defendant further contends that the effect of the above quoted portion of the charge is to require at least a finding of murder in the second degree, when it is proven that defendant with a deadly weapon intentionally inflicted the wound which proximately caused deceased's death.
It is true that when the presumptions of malice and an unlawful killing arise, nothing else appearing, defendant would be guilty of murder in the second degree. However, it is incumbent upon the trial judge to instruct the jury that the law casts upon the defendant the burden of showing to the satisfaction of the jury, not beyond a reasonable doubt, but simply to satisfy the jury as to legal provocation that would deprive the crime of malice and thus reduce it to manslaughter, or that will excuse it on some ground recognized in law as a complete defense. State v. Mercer, su...
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...passage out of context and, as a result, his argument misconstrues the law on self-defense. Defendant's reliance on State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971), is misplaced. The paragraph containing defendant's requested instruction reads as "... In order that the right of self-de......
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