{
  "id": 8551906,
  "name": "STATE OF NORTH CAROLINA v. JOSEPH D. CHAVIS",
  "name_abbreviation": "State v. Chavis",
  "decision_date": "1976-07-07",
  "docket_number": "No. 7616SC174",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Hedrick and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOSEPH D. CHAVIS"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nThe attorneys for defendants Chavis and Pevia have caused two separate records on appeal to be filed in this Court. There should have been but one. Rule 11(d), North Carolina Rules of Appellate Procedure. Each counsel will be personally taxed with a portion of the costs of the unnecessary record. Rule 9(b) (5) of the Rules of Appellate Procedure; see opinion of Chief Judge Brock in State v. Patricia Ann McKenzie, Case No. 7620SC74, which is filed contemporaneously herewith.\nOn appeal of defendant Chavis, counsel first contends that the court erred in denying the defendant\u2019s motion to direct a verdict for defendant at the close of the State\u2019s evidence as to the charge of second degree murder. \u201cIn a criminal case the proper motion to test the sufficiency of the State\u2019s evidence to carry the case to the jury is a motion to dismiss the action or a motion for judgment as in the case of nonsuit, pursuant to G.S. 15-173.\u201d State v. Everette, 284 N.C. 81, 84 199 S.E. 2d 462, 465 (1973). We shall treat defendant\u2019s motion for a directed verdict as having been a motion for judgment as in case of nonsuit. In this case, defendant Chavis introduced evidence. By so doing he waived his right to except on appeal to the denial of his motion for nonsuit made at the close of the State\u2019s evidence. G.S. 15-173; State v. Rigsbee, 285 N.C. 708, 208 S.E. 2d 656 (1974); State v. Paschall, 14 N.C. App. 591, 188 S.E. 2d 521 (1972). On this appeal, therefore, we consider only defendant Chavis\u2019s second motion, made at the close of all the evidence.\nWhen all of the evidence is viewed in the light most favorable to the State and when all discrepancies and contradictions are resolved in favor of the State, we find the evidence was amply sufficient to support a jury finding that Chavis intentionally used a deadly weapon and thereby caused the death of Lowery. \u201cWhen the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree.\u201d State v. Gordon, 241 N.C. 356, 358, 85 S.E. 2d 322, 323 (1955). These traditional presumptions are still valid. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975). There was no error in submitting the charge of second-degree murder to the jury.\nWhile we hold that the evidence was amply sufficient to justify submitting second-degree murder as a possible verdict, we point out that defendant\u2019s conviction of voluntary manslaughter would render harmless an error, had any error been committed, in submitting to the jury the question of defendant\u2019s guilt of the more serious offense, at least absent any showing that the verdict of guilty of the lesser offense was affected thereby. \u201cIt has long been recognized in this State that submission of a question regarding the guilt of a defendant of murder in the second degree became harmless when the jury returned a verdict of manslaughter.\u201d State v. Bryant, 282 N.C. 92, 101, 191 S.E. 2d 745, 751 (1972).\nDefendant\u2019s second argument, that the court erred in denying his motions made at the close of all of the evidence for a directed verdict as to manslaughter and to dismiss all charges against him, is without merit. The evidence for the defense tending to show that defendant Chavis did not shoot Lowery and that in resisting Lowery\u2019s attack he acted in self-defense was for the jury to evaluate. Viewed in the light most favorable to the State, the evidence was amply sufficient to warrant submitting the case to the jury and to support the verdict rendered.\nFinally, defendant Chavis contends that the court erred in denying his motion to set aside the verdict as being against the greater weight of the evidence. \u201cA motion to set aside the verdict as being against the greater weight of the evidence is addressed to the discretion of the trial court, and the court\u2019s refusal to grant the motion is not reviewable on appeal.\u201d State v. Dull, 289 N.C. 55, 62, 220 S.E. 2d 344, 348 (1975).\nOn the appeal of defendant Chavis we find\nNo error.\nJudges Hedrick and Arnold concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Assistant Attorney General Richard F. Kane for the State.",
      "L. J. Britt & Son by Luther J. Britt, Jr., and Bruce W. Higgins for defendant Chavis, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH D. CHAVIS\nNo. 7616SC174\n(Filed 7 July 1976)\n1. Criminal Law \u00a7\u00a7 145, 154\u2014 appeal from trial of two defendants \u2014 two records on appeal \u2014 taxing of costs against attorneys\nWhere attorneys representing two defendants in an appeal from a consolidated trial of both defendants for the same offense caused two separate records on appeal to be filed in the appellate court instead of one record, each attorney will be personally taxed with a portion of the costs of the unnecessary record. App. R. 9(b) (5).\n2. Criminal Law \u00a7 105\u2014 motion for nonsuit \u2014 effect of introducing evidence\nDefendant, by introducing evidence, waived his right to except on appeal to the denial of his motion for nonsuit made at the close of the State\u2019s evidence.\n3. Homicide \u00a7 21\u2014 second degree murder \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient for the jury in a prosecution for second degree murder where it would support a jury finding that defendant intentionally used a deadly weapon and thereby caused the victim\u2019s death.\n4. Homicide \u00a7 32\u2014 conviction of manslaughter \u2014 submission of second degree murder \u2014 harmless error\nDefendant\u2019s conviction of voluntary manslaughter rendered harmless error, if any, in the submission of the question of defendant\u2019s guilt of second degree murder, at least absent any showing that the verdict of guilty of the lesser offense was affected thereby.\n5. Criminal Law \u00a7 132 \u2014 'motion to set aside verdict \u2014 discretion of court\nA motion to set aside the verdict as being against the greater weight of the evidence is addressed to the discretion of the trial court, and the court\u2019s refusal to grant the motion is not reviewable on appeal.\nAppeal by defendant from McLelland, Judge. Judgment entered 16 October 1975 in Superior Court, Robeson County. Heard in the Court of Appeals 27 May 1976.\nBy bill of indictment in the form authorized by G.S. 15-144, defendant Chavis was charged with the murder on 27 October 1974 of one Louis H. Lowery. By separate indictment Allen Pevia was charged with the same offense. The two cases were joined for trial. The state elected to try defendants only for murder in the second degree, to which charge both defendants pled not guilty.\nThe State\u2019s evidence showed that on Sunday afternoon, 27 October 1974, defendants Chavis and Pevia, after being told that Louis Lowery was at Redell Locklear\u2019s house, went to Lock-lear\u2019s house, which was a bootleg joint. Theodore Graham, a witness for the State, testified that he and Louis Lowery were standing at the bar drinking beer when he heard a sound \u201clike somebody slapped somebody.\u201d He turned around and saw Chavis holding a pistol in his hand. Pevia was standing behind Chavis, holding a shotgun and waving it back and forth. Graham heard Chavis say that \u201che was sick of that God damn shit,\u201d and he saw Chavis fire the pistol twice, these two shots being fired past Louis Lowery\u2019s head. Something fell to the floor, and Chavis reached down. When he stood up, he was holding two pistols, one in each hand. Louis Lowery walked toward Chavis, and Chavis fired. Blood gushed from Louis Lowery\u2019s chest. At this time, Lowery had no weapon. Chavis and Pevia then left, Chavis being the first to go out the door and Pevia following. As Pevia went out the door, he had the shotgun in his hand pointed back toward the persons in the house.\nLowery was taken to the hospital, but died before arriving. The pathologist who conducted the autopsy testified that Lowery died as a result of gunshot wounds in his heart. A .22 caliber bullet was recovered from his body.\nDefendant Chavis testified that as he entered the Locklear house, Lowery grabbed him by the neck \u201clike wrestling on television\u201d; that he broke loose from Lowery but Lowery pursued him; that as Lowery was pulling a gun out of his pocket and they were tusseling in front of the bar, the gun went off while it was in Lowery\u2019s hand; that at this time he heard other gunshots in the room.\nDefendant Pevia did not present evidence.\nThe jury found both defendants guilty of voluntary manslaughter, and from judgments imposing prison sentences, both appealed.\nAttorney General Edmisten by Assistant Attorney General Richard F. Kane for the State.\nL. J. Britt & Son by Luther J. Britt, Jr., and Bruce W. Higgins for defendant Chavis, appellant."
  },
  "file_name": "0075-01",
  "first_page_order": 103,
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