{
  "id": 8551461,
  "name": "STATE OF NORTH CAROLINA v. DALE SMITH",
  "name_abbreviation": "State v. Smith",
  "decision_date": "1975-06-18",
  "docket_number": "No. 7529SC201",
  "first_page": "283",
  "last_page": "286",
  "citations": [
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      "type": "official",
      "cite": "26 N.C. App. 283"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "188 S.E. 2d 900",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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    {
      "cite": "281 N.C. 316",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8575105,
        8575149,
        8575120,
        8575093,
        8575134
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    {
      "cite": "186 S.E. 2d 667",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "13 N.C. App. 499",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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        8554481
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      "year": 1972,
      "opinion_index": 0,
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        "/nc-app/13/0499-01"
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    {
      "cite": "210 S.E. 2d 407",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "pin_cites": [
        {
          "page": "413-14"
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      "opinion_index": 0
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    {
      "cite": "286 N.C. 304",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8565329
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      "year": 1974,
      "pin_cites": [
        {
          "page": "312-13"
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  "last_updated": "2023-07-14T16:59:13.418266+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Martin and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DALE SMITH"
    ],
    "opinions": [
      {
        "text": "CLARK, Judge.\nThe appellant contends that the trial court erred in admitting the statement made by the' defendant to a police officer in which he confessed that he shot Gonzalez, sirice the' defendant had not knowingly and understandingly waived his constitutional rights against self-incrimination. There was evidence on voir dire that prior to any questioning the defendant had been given the. traditional Miranda warnings and had told the investigating officer that he understood each of his rights and did not want a lawyer. We find'no error in the finding of the trial court that the defendant had freely and understandingly waivedi his Fifth Amendment rights and that any statement made thereafter was admissible. In any event, the defendant was not prejudiced thereby since his wife, called by the defendant as his witness, brought out all the circumstances surrounding the killing and the fact that the defendant had fired the fatal shot.\nThe defendant further contends that since the evidence clearly indicated that the defendant\u2019s wife and the deceased were discovered by him when an act of intercourse had just been completed, it was error for the trial court to charge on second-degree murder and place the burden on the defendant of reducing the crime to manslaughter; he contends that the trial court should charge only that if the jury should find such circumstances, the defendant would be guilty of manslaughter. We do not agree.\nThe defendant relies on dictum in State v. Ward, 286 N.C. 304, 312-13, 210 S.E. 2d 407, 413-14 (1974), as follows:\n\u201cWhen one spouse kills the other in a heat of passion engendered by the discovery of the deceased and a paramour in the very act of intercourse, or under circumstances clearly; indicating that the act had just been completed, or was \u2018severely proximate,\u2019 and the killing follows immediately, it is manslaughter. However, a mere suspicion, belief, or knowledge of past adultery between the two will not change the character of the homicide from murder to manslaughter.\u201d\nThe foregoing language does not sustain the defendant\u2019s contention. Since all of the evidence tends to show an intentional killing with a deadly weapon, the court properly instructed on the presumptions therefrom that the killing was unlawful and was done with malice, thereby constituting second-degree murder, unless the defendant proved to the satisfaction of the jury the facts which would mitigate it to manslaughter. 4 Strong, N. C. Index 2d, Homicide, \u00a7 24 (1968). The burden was on the defendant to satisfy the jury that the killing was due to passion aroused by the provocation and not to revenge or malice. See 40 C.J.S., Homicide, \u00a7 49 (1944).\nIn this State, the-trial judge has the burdensome task under G.S. 1-180 of declaring and explaining the law arising on the evidence. In a homicide case where the evidence tends to show that the killing followed the discovery by the defendant of his wife and the deceased in the very act of intercourse, or under circumstances clearly indicating that the act had just been completed, or was \u201cseverely proximate,\u201d then it would be appropriate for the- trial judge to instruct that if they are satisfied as to the foregoing facts and that the defendant killed the deceased in a heat of passion engendered by such discovery, then the killing would be mitigated from murder to manslaughter.\nIn the case at bar, the jury returned a verdict of guilty of voluntary manslaughter. That verdict rendered harmless any error there may have been in so submitting the case to the jury on \u201cPattern Jury Instructions\u201d without instructions on the killing in the heat of passion upon discovery of the adulterous act. See generally State v. Sallie, 13 N.C. App. 499, 186 S.E. 2d 667, cert. denied, 281 N.C. 316, 188 S.E. 2d 900 (1972).\nIn the trial below we find\nNo error.\nJudges Martin and Arnold concur.",
        "type": "majority",
        "author": "CLARK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney G. Jona Poe, Jr., for the State.",
      "\u25a0 Edwin R. Groce for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DALE SMITH\nNo. 7529SC201\n(Filed 18 June 1975)\n1. Criminal Law \u00a7 75\u2014 statement by defendant.\u2014 voluntariness\nWhere there was evidence on voir dire that prior to any question ing the defendant had been given the traditional Miranda warnings and had told the investigating officer that he understood each of his rights and did not want a lawyer, there was no error in the finding of the trial court that defendant had' freely and understandingly waived his Fifth Amendment rights and that any statement made thereafter-was admissible. -J\n2. Homicide \u00a7 26 \u2014 intentional shooting with deadly weapon \u2014 killing of . wife\u2019s paramour by husband \u2014 second, degree murder instruction proper\nWhere the evidence tended to show that defendant found his wife and her paramour in bed together in the nude, both were asleep; defendant awakened his wife and told her he was going to call the police and to get the paramour out of the house, and defendant thereafter started crying and carrying on and shot the paramour with his own gun, the trial court properly instructed on the presumptions arising from an intentional killing with a deadly weapon that the killing was unlawful and was done with malice, thereby constituting second degree murder, unless the defendant proved to the satisfaction of the jury the facts which would mitigate it to manslaughter.\n3. Criminal Law \u00a7 172 \u2014 second degree murder \u2014 failure to instruct on' heat of passion \u2014 error cured by verdict of guilty of voluntary manslaughter\nAny error there may have been in submitting a second degree murder case to the jury without instructions on the killing in the heat of passion upon discovery by defendant of his wife and deceased in bed immediately subsequent to an adulterous act was rendered harmless by a verdict of guilty of voluntary manslaughter.\nAppeal by defendant from Winner, Judge. Judgment entered 11 October 1974 in Superior Court, Henderson County. Heard in the Court of Appeals 8 May 1975.\nDefendant was charged with murder in the first degree of Sergis Gonzalez, but the State elected to seek only a conviction of murder in the second degree, or manslaughter. The defendant pled not guilty.\nThe evidence in the case tended to show that the defendant, after having completed his work on the night shift at the General Electric plant in Hendersonville, went home and discovered his wife and Sergis Gonzalez asleep in bed together in the nude. Gonzalez and the defendant\u2019s wife had been having an affair for approximately a week and a half and had engaged in sexual intercourse some six to eight times during that period unbeknownst to the defendant. As both were asleep, the defendant woke his wife and told her he was going to call the police and to. get Gonzalez out of the house. The defendant thereafter started crying and carrying on and shot the deceased with, the deceased\u2019s own gun which the deceased had carried to the house arid placed on the night stand beside the bed.\nThe case was submitted to the jury on murder in the second degree and voluntary manslaughter! Upon a verdict of guilty of voluntary manslaughter, the trial judge in his discretion sentenced the defendant to be imprisoned for a term of not less than eight nor more than ten years.'The defendant appealed.\nAttorney General Edmisten, by Associate Attorney G. Jona Poe, Jr., for the State.\n\u25a0 Edwin R. Groce for the defendant."
  },
  "file_name": "0283-01",
  "first_page_order": 311,
  "last_page_order": 314
}
