{
  "id": 8550816,
  "name": "STATE OF NORTH CAROLINA v. MONROE CALLOWAY",
  "name_abbreviation": "State v. Calloway",
  "decision_date": "1968-04-17",
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    "judges": [
      "Mallard, C.J., and Parker, J., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MONROE CALLOWAY."
    ],
    "opinions": [
      {
        "text": "Brock, J.\nThe defendant assigns as error the instruction to the jury by the Court defining the intensity of proof required of the defendant to establish his plea of self-defense. Regarding that the trial judge instructed the jury as follows:\n\u201cWhen an intentional killing is admitted or established, the law presumes malice from the use of a deadly weapon. And the defendant is guilty of murder in the second degree unless he can satisfy the jury of the truth of facts which justify his act or mitigate it to manslaughter.\n\u201cThe burden is on the defendant to establish such facts to the satisfaction of the jury, unless they arise out of the evidence against him. However, to meet the burden the defendant is not required to prove beyond a reasonable doubt the facts he relies on in mitigation, justification or excuse. Proof beyond a reasonable doubt calls for the highest intensity of proof known to our law.\n\u201cTo satisfy a jury beyond a reasonable doubt means that they must be fully satisfied, or entirely convinced, or satisfied to a moral certainty of the truth of the charge. But the defend ant does not meet the requirement of the law when he satisfies the jury merely by the greater weight of the evidence of the truth of the facts he relies on in mitigation, justification or excuse. (Emphasis added.)\n\u201cBy the greater weight of the evidence, that is more convincing, or evidence that carries greater weight, greater assurance than that which is offered in opposition thereto, (sic)\n\u201cBy the phrase \u2018to the satisfaction of the jury\u2019 is considered to bear a stronger intensity of proof than that by the greater weight or preponderance of the evidence.\n\u201cSo, to prove a fact or facts to the satisfaction of the jw'y requires a higher degree of proof, and signifies something more than a belief founded on the greater weight of the evidence, but does not require as high a degree or as strong an intensity of proof as proof beyond a reasonable doubt.\u201d (Emphasis added.)\nThe foregoing instruction clearly places upon the defendant a burden of proof of more intensity than \u201cby the greater weight of the evidence.\u201d An instruction containing almost the exact words as the last paragraph of the foregoing instruction was disapproved in a per curiam opinion by our Supreme Court in State v. Matthews, 263 N.C. 95, 138 S.E. 2d 819.\nNevertheless, the Attorney General strenuously urges that a consideration of the entire portion of the instructions as set out above leads to the conclusion that it follows the law as laid down in State v. Carland, 90 N.C. 664.\nIn 1845, The Supreme Judicial Court of Massachusetts, in the landmark case of Commonwealth v. York, 9 Metc. 93, laid down the rule that justification for a homicide must be established by \u201cpreponderating proof.\u201d In 1855, The Supreme Court of North Carolina, in the case of State v. Johnson, 48 N.C. 266, adopted the rule that justification for a homicide must be established \u201cbeyond a reasonable doubt.\u201d In 1864, The Supreme Court of North Carolina, in the case of State v. Ellick, 60 N.C. 450, without mentioning either Commonwealth v. York, or State v. Johnson, announced the rule to be that justification for a homicide must be established \u201cto the satisfaction of the jury.\u201d Then, in 1868, in the case of State v. Willis, 63 N.C. 26, The Supreme Court of North Carolina approved the rule of State v. Ellick (to the satisfaction of the jury) and specifically rejected the rule of Commonwealth v. York (preponderating proof), and the rule of State v. Johnson (beyond a reasonable doubt). In State v. Willis, the Court said this:\n\u201cWe prefer to stand super antiquas vias, and to adhere to the rules laid down in State v. Ellick, 60 N.C. 450. In that case the erroneous statement which we had inadvertently made in State v. Johnson, 48 N.C. 266, that it was incumbent on the prisoner to establish the matters of excuse or extenuation beyond a reasonable doubt, is corrected. In it is also corrected what we consider as erroneous in the decision of the Court in Commonwealth v. York, that the matter of excuse or extenuation which the prisoner is to prove must be decided according to the preponderance of evidence. It is more correct to say, as we think, that they must be proved to the satisfaction of the jury.\u201d\nIn State v. Carland, supra, relied upon by the Attorney General, the Supreme Court was considering an instruction to the jury as follows:\n\u201cWhen the prisoner comes to show his matters of excuse or mitigation, he is not required to prove these matters beyond a reasonable doubt, but he is required to prove them to the satisfaction of the jury; but the degree of proof is not so far relaxed that he may establish his matters of excuse or mitigation by a bare preponderance of proof, but must do so to the satisfaction of the jury.\u201d\nIn overruling the exception to the quoted portion of the instructions, the Court said:\n\u201cWe are unable to see in what respect the charge of his Honor is obnoxious to the prisoner\u2019s exception. The plain meaning of the instruction is, that a bare preponderance of proof will not do to show matters of mitigation or excuse, unless it produces satisfaction of their truth in the minds of the jury. We can well conceive of cases where there may be a bare or slight preponderance of proof on one side, which yet fails to produce satisfaction, and still leaves the mind in an uncertain and dubious state. His meaning evidently is, and so we think any one would take it, that the jury must be satisfied; and if not satisfied, a bare preponderance of evidence will not do.\u201d\nIn its decision the Court recognized that State v. Ellick, supra, and State v. Willis, supra, had rejected the rule of Commonwealth v. York, supra, (preponderating proof), and had rejected the rule of State v. Johnson, supra (beyond a reasonable doubt). Clearly in this case the Court was approving the rule of State v. Ellick and State v. Willis (proof to the satisfaction of the jury). In the above quoted portion of the opinion in'the Carland case, the Court did not require more than a bare preponderance of the evidence. On the contrary, it specifically recognized that matters in mitigation or excuse established by a bare preponderance of the evidence would suffice, if it produces satisfaction of their truth in the minds of the jury.\nThe Carland case has been cited numerous times through the years by our Supreme Court in support of the rule that the burden of proof is upon the defendant to establish matters in mitigation or justification of a homicide to the satisfaction of the jury \u2014 not by the greater weight of the evidence nor beyond a reasonable doubt \u2014 but simply to the satisfaction of the jury. State v. Benson, 183 N.C. 795, 111 S.E. 869; State v. Smith, 187 N.C. 469, 121 S.E. 737; State v. Meares, 222 N.C. 436, 23 S.E. 2d 311.\nWe reiterate here what was said by the Court in State v. Prince, 223 N.C. 392, 26 S.E. 2d 875, where it was considering an instruction very similar to the instruction given by Judge Falls.\n\u201cHowever, there may be found in the opinions of the Court statements which if lifted from the context may support the charge as given, but when such statements are considered contextually the rule as generally stated requires that if there be evidence sufficient for the consideration of the jury, of which the court shall be the judge, the intensity of such evidence must be \u2018simply to the satisfaction of the jury,\u2019 of which the jury alone is the judge.\u201d\nIt is clear that the defendant is not required to prove his matters in mitigation or justification of a homicide \u201cbeyond a reasonable doubt,\u201d for this would be too heavy a burden to impose upon the defendant. State v. Ellick, supra. But the intensity of the proof required to \u201csatisfy the jury\u201d of the truth of matters in mitigation or justification of a homicide cannot be defined by the Court as being \u201cless than,\u201d \u201cthe same as,\u201d or \u201cmore than\u201d the greater weight of the evidence or the preponderance of the evidence. Stansbury, N. C. Evidence 2d, \u00a7 214. A bare preponderance of the evidence may be sufficient to satisfy the jury. State v. Carland, supra. Also, proof by the greater weight of the evidence may be sufficient to satisfy the jury. State v. Prince, supra.\nWhen the intentional killing of a human being with a deadly weapon is admitted, or is established by the evidence, the law then casts upon the defendant the burden of proving to the satisfaction of the jury the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or the legal justification that will excuse it altogether upon the ground of self-defense. This burden may be carried by evidence offered by the defendant, or by the evidence offered against him, or both.\nIt is for the Court to determine whether there is sufficient evidence for consideration by the jury, and it is for the jury to determine what intensity of proof satisfies it. State v. Prince, supra.\nThe trial judge committed error in his charge because it put too heavy a burden upon the defendant.\nThe Attorney General asserts that if there was error in the charge it was not prejudicial to the defendant because the defendant was only convicted of manslaughter. This position cannot be sustained. The defendant\u2019s defense was self-defense, which, if established to the satisfaction of the jury, would entitle him to an acquittal. The charge as given imposed on the defendant an erroneous burden of proof to establish his defense.\nNew trial.\nMallard, C.J., and Parker, J., concur.",
        "type": "majority",
        "author": "Brock, J."
      }
    ],
    "attorneys": [
      "T. W. Bruton, Attorney General, by Ralph Moody, Deputy Attorney General, for the State.",
      "Bill Atkins and Fonts and Watson by Dover R. Fouts, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MONROE CALLOWAY.\n(Filed 17 April 1968.)\n1. Homicide \u00a7 14\u2014\nWhen the intentional killing of a human being with a deadly weapon is admitted or is established by the evidence, the burden is on the defendant to prove to the satisfaction of the jury the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or the legal justification that will excuse it altogether upon the ground of self-defense, and this burden may be carried by evidence offered by the defendant, or by the State, or both, it being for the court to determine whether there is sufficient evidence for consideration by the jury and for the jury to determine what intensity of proof satisfies it.\n2. Homicide \u00a7 24\u2014\nAn instruction that the burden is on defendant to prove self-defense to the satisfaction of the jury and that such degree of proof exceeds proof by tbe greater weight of the evidence, is held prejudicial, since proof by a bare preponderance of the evidence, or by the greater weight of the evidence, may be sufficient to satisfy the jury.\n3. Same; Criminal Law \u00a7 172\u2014\nAn erroneous instruction upon the intensity of proof required to satisfy the jury of matters in mitigation or justification of homicide is not cured by defendant\u2019s conviction of manslaughter, since defendant\u2019s defense of self-defense, if established to the jury\u2019s satisfaction, would entitle him to an acquittal.\nAppeal by the defendant from Falls, J., November, 1967, Session, YaNCey Superior Court.\nThe defendant was charged in a bill of indictment with the murder of Louis Banks on 24 August 1967. He was arraigned upon the charge of murder in the second degree, pleaded not guilty, and relied upon the defense of self-defense. The jury returned a verdict of guilty of manslaughter, and from judgment of imprisonment the defendant appealed.\nT. W. Bruton, Attorney General, by Ralph Moody, Deputy Attorney General, for the State.\nBill Atkins and Fonts and Watson by Dover R. Fouts, for defendant appellant."
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