State v. Wingler

• Decision Date: 04 November 1953
• Docket Number: No. 218,218
• Citation: 238 N.C. 485,78 S.E.2d 303
• Court: North Carolina Supreme Court
• Parties: STATE, v. WINGLER et al.

Page 303

78 S.E.2d 303

238 N.C. 485

STATE, v. WINGLER et al.

No. 218

Supreme Court of North Carolina.

Nov. 4, 1953

Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.

Trivette, Holshouser & Mitchell and Whicker & Whicker, North Wilkesboro, for Defendants, Appellants.

PARKER, Justice.

In the record the defendants have 89 exceptions, and 38 assignments of error. However, only 9 assignments of error and 19 exceptions are argued in their brief.

The appellants' assignment of error No. 11 is to the court's overruling their motions for nonsuit, particularly as to Calvin Miller. The State's evidence tends to show that Calvin Miller, with a pistol in his hand, and Lance Owens were approaching each other on the highway. There had been previous trouble between them. Grace Wingler came up, and asked Miller for the gun saying 'give me the gun, I will shoot the s---of a----.' He gave her the gun, and she shot Owens, and killed him. We are of opinion that there was plenary evidence to carry the case to the jury that Grace Wingler was guilty of second degree murder, and that Calvin Miller was present as a co-principal aiding and abetting Grace Wingler and equally guilty. State v. Jarrell, 141 N.C. 722, 53 S.E. 127; State v. Williams, 225 N.C. 182, 33 S.E.2d 880; State v. Johnson, 226 N.C. 671, 40 S.E.2d 113; State v. Holland, 234 N.C. 354, 67 S. E.2d 272; State v. Moore, 236 N.C. 617, 73 S.E.2d 467. The assignment of error No. 11 is without merit.

The appellants' assignment of error No. 22 is based upon their exceptions Nos. 66, 67, 68, 69, 70 and 71. Grace Wingler testified as a witness for herself, and Duel Miller testified as a defense witness. According to the defendants' evidence, Grace Wingler and Duel Miller were partners in the operation of a store with beer and groceries in sight of Lloyd Bare's beer joint. Duel Miller on November 3, 1952 had been sick in bed, Grace Wingler had been working in the store all day, and when Duel Miller got up they closed their store about 7:30 or 8:00 p. m., and went to Bare's place. The State in rebuttal offered the testimony of Charley Dancy and Wrenn Hayes, both deputy sheriffs of Wilkes County. About midnight on November 3, 1952, these two deputy sheriffs went to Grace Wingler's and Duel Miller's place of business to arrest her for the murder of Lance Owens. Owens was then dead. They found present several patrolmen and the Sheriff of Ashe County. When they went in Grace Wingler was in the kitchen, and Duel Miller was sitting on the bed. Dancy, during his examination in chief, was asked these questions:

'Q. When you arrived up there at Grace Wingler's place of business and Duel Miller's, what was the condition of the rooms there, if you know? Wingler objects. Overruled. Exception 66. A. She was in her bedroom. I pecked on the front door and saw her come around to the back door. I went around to the back door and she opened the door. I went in the kitchen, and she was in the bedroom.

'Q. Was anybody in there with her at that time? Wingler objects. Overruled. Exception 67. A. I believe Duel was there. I am not sure. Defendant Wingler moves to strike out answer. Motion allowed.

'Q. You may state if Grace Wingler had her clothes strewn around there in the room when you went in? This question was not answered. The defendant Grace Wingler moves to strike his evidence on this ground, they asked her about it and we say for the purpose of impeaching her and she denies it and they are bound by it. Overruled. Exception 68. Wrenn Hayes testified on direct examination that he was a deputy sheriff of Wilkes County on 3 November 1952, and on that night went to Grace Wingler's and Duel Miller's place of business. When he and Charley Dancy arrived two patrolmen were there and the Sheriff of Ashe County with several standing out in the yard. The defendant Calvin Miller objected. The court instructed the jury that this testimony was not evidence against Calvin Miller. Grace Wingler objected. Overruled. Exception 69. Hayes was asked this question:

'Q. Where was Grace and where was Duel when you went in? Defendant Wingler objects. Overruled. Exception 70. A. When we went in Grace was standing in the kitchen. She had undone the door and Duel was in the bed, sitting on the bed.

'Q. What, if anything, did she tell you about how it happened? Defendant Wingler objects. Exception 71. A. She said she was in a scuffle.'

The defendants contend that this tended to show adultery between Grace Wingler and Duel Miller; that Grace Wingler beforehand denied spending the night sometimes with Duel Miller; that the State is bound by her answer, and that the admission of this evidence is prejudicial error. The testimony of the two Wilkes County deputy sheriffs as to where Grace Wingler and Duel Miller were when they arrived with three officers already in the store and people outside, in our opinion, could not have improperly influenced the jury in arriving at their verdict. This assignment of error is untenable.

Assignment of error No. 12 based on exceptions Nos. 30, 31 and 32 is that on cross-examination of Grace Wingler the State brought out over her objections that she had had two husbands, and both were dead--one a suicide. Assignment of error No. 8 based on exception 23 is that Blackburn, a witness for the State, was allowed to say, over objection, that he is now in the Service. Assignment of error No. 10 based on exceptions Nos. 27 and 28 is that Bauguess after testifying he could not help Owens in the car after he was shot because he was crippled, was allowed to say, over objection, that he had an artificial right leg. This was exception 27. Exception 28 is that he was asked if he was related to either the State's or the defendants' witnesses, and over objection replied, not that I know of. Obviously, the admission of such testimony would not justify the overthrow of the jury's verdict upon such slender technicalities.

The appellants' assignment of error No. 35, based on exception No. 86, is that the court failed to charge the jury adequately that if Grace Wingler intentionally pointed the pistol at the deceased and the pistol accidentally discharged killing Owens, the defendants would be guilty of no greater crime than manslaughter, provided she was not committing a felony at the time of the fatal shot, and failed to charge properly as to an accidental killing. The court stated clearly and fully the contentions of the appellants as to an accidental killing. Then it charged 'if they were scuffling over the gun, somebody hit her in the head and knocked her unconscious, even though the gun went off in her hand, she would not be guilty, because to make haer guilty, she must have intended to commit the act with which she is charged, and if she was unconscious, she couldn't form an intent to do a thing, it would be an accident.' Then the court defined 'an accident.' This is a substantial compliance with the law as set forth in our decisions on accidental homicide. State v. Banks, 204 N.C. 233, 167 S.E. 851; State v. Williams, 235 N.C. 752, 71 S.E.2d 138; State v. Bright, 237 N.C. 475, 75 S.E. 2d 407.

Assignment of error No. 36, based on exception No. 87, is that the court failed to instruct the jury that the State was required to show that Owens came to his death as a proximate result of the pistol wound inflicted by the defendant Wingler, and that the burden of proof rested upon the State to show beyond a reasonable doubt that said wound was intentionally inflicted.

The court correctly defined murder in the second degree as the unlawful killing of a human being with malice, but without premeditation and deliberation, and manslaughter as the unlawful killing of a human being without malice and without premeditation and deliberation. He then correctly defined malice, and reasonable doubt, and correctly placed the burden of proof on the State. The court in stating the State's contentions said in part: 'the State contends * * * that you should be satisfied beyond a reasonable doubt that both the defendants Wingler and Calvin Miller are guilty of murder in the second degree in that they unlawfully slew the deceased, and they did it with malice;' and further on 'the State contends you should find beyond a reasonable doubt from the testimony that he (Calvin Miller) gave her the gun and he gave it to her for the purpose of letting her shoot him and that she did...