{
  "id": 8550780,
  "name": "STATE OF NORTH CAROLINA v. JIMMY WILSON WARD",
  "name_abbreviation": "State v. Ward",
  "decision_date": "1977-12-07",
  "docket_number": "No. 775SC439",
  "first_page": "598",
  "last_page": "601",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "reporter": "S. Ct.",
      "year": 1971,
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    {
      "cite": "29 L.Ed. 2d 859",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 1971,
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      "cite": "403 U.S. 948",
      "category": "reporters:federal",
      "reporter": "U.S.",
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        12043226
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      "cite": "167 S.E. 2d 241",
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      "reporter": "S.E.2d",
      "year": 1969,
      "pin_cites": [
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          "page": "255"
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    {
      "cite": "275 N.C. 288",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8558608
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      "year": 1969,
      "pin_cites": [
        {
          "page": "311"
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      "case_paths": [
        "/nc/275/0288-01"
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  "last_updated": "2023-07-14T20:28:15.830309+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JIMMY WILSON WARD"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nDefendant\u2019s assignment of error to the admission into evidence of three photographs of deceased on the ground that they only tend to inflame the jury is without merit. Deceased was shot numerous times in the chest, head, and back. The photographs were clearly competent to illustrate the testimony of the State\u2019s witness. \u201cThe fact that a photograph depicts a horrible, gruesome, and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated as a correct portrayal of conditions observed by and related by the witness who uses the photograph to illustrate his testimony.\u201d State v. Atkinson, 275 N.C. 288, 311, 167 S.E. 2d 241, 255 (1969), rev\u2019d on other grounds, 403 U.S. 948, 29 L.Ed. 2d 859, 91 S.Ct. 2283 (1971).\nThe State\u2019s evidence tends to show that at the time of the fatal shooting, the defendant, the deceased, Mrs. Shepherd, and Mrs. Ward were present in defendant\u2019s living room. Defendant and Mrs. Ward were married after he was released on bond pending trial of this case. Defendant\u2019s evidence tended to show that neither Mrs. Shepherd nor his wife was in the room at the time of the fatal shooting.\nDuring his closing argument to the jury the district attorney argued in part as follows: \u201cLadies and gentlemen, I, The State of North Carolina, we have tried to present this case to you and give you all of the evidence we have in this case. The defendant\u2019s wife was \u2014 she didn\u2019t say she was there or not there \u2014 I don\u2019t know where she was. She didn\u2019t say she was there or not there. From the evidence Mr. Ward [the defendant] gave you, he and Mrs. Shepherd and these two children in the bedroom, plus his wife now \u2014 she wasn\u2019t his wife then, but he said he had a rifle there in his home with his wife and children. That\u2019s not the true situation as it was at that time. Everybody who was there except those two children has told you what they know. I don\u2019t know what she knows.\u201d\n\u201cThe husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the failure of such witness to be examined shall not be used to the prejudice of the defense.\u201d (Emphasis added.) G.S. 8-57.\nWhether intended or not, it seems to us that the district attorney\u2019s argument to the jury probably was received by the jury as a criticism of the failure of defendant\u2019s wife to testify. This is the very thing which is proscribed by G.S. 8-57, supra.\nThe State\u2019s witness, Mrs. Shepherd, testified that she was in defendant\u2019s living room at the time of the fatal shooting. She further testified that deceased was standing in the living room in front of defendant at the time of the shooting, and that deceased did not have a knife. She further denied telling defendant\u2019s witness, Rosa Morgan, that deceased had a knife and was going after defendant with it.\nThe defendant\u2019s witness, Rosa Morgan, testified that Mrs. Shepherd, on the day after the fatal shooting, stated to her that deceased had a knife and threatened to cut off defendant\u2019s head. Defendant\u2019s entire defense was that he shot deceased in self-defense.\nIn his instructions to the jury the trial judge stated: \u201cThe defendant has offered evidence which in substance tends to show that Mrs. Shepherd had made some statement to the effect that Bordeaux [deceased] had called Ward [defendant] some names and had threatened to cut Mr. Ward [defendant]; however, that in making the statement to one Rosa Morgan, that Mrs. Shepherd said she did not see a knife.\u201d\nWe recognize that the trial judge has the burden of instructing extemporaneously and that exactness cannot be required. However, in this instance the able trial judge\u2019s mistaken summary of defendant\u2019s evidence constituted a fundamental misconstruction of evidence which was vital to defendant\u2019s claim of self-defense.\nDefendant\u2019s remaining assignments of error have been reviewed. In view of the foregoing we deem it unnecessary to discuss them. For prejudicial error in the district attorney\u2019s argument to the jury and for prejudicial error in the trial judge\u2019s instructions to the jury defendant is entitled to a\nNew trial.\nJudges Parker and Arnold concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Amos Dawson, for the State.",
      "E. Hilton Newman, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JIMMY WILSON WARD\nNo. 775SC439\n(Filed 7 December 1977)\n1. Homicide \u00a7 20.1\u2014 photographs of deceased \u2014 admissibility\nThe trial court in a homicide prosecution did not err in allowing into evidence three photographs of the deceased who had been shot numerous times in the chest, head and back, since the photographs were competent to illustrate the testimony of the State\u2019s witness.\n2. Criminal Law \u00a7 102.8\u2014 district attorney\u2019s jury argument \u2014 comment on failure of defendant\u2019s wife to testify \u2014 error\nStatements by the district attorney during his jury argument as to where defendant\u2019s wife was at the time of the shooting could have been received by the jury as a criticism of the failure of defendant\u2019s wife to testify, and defendant is therefore entitled to a new trial. G.S. 8-57.\n3. Homicide \u00a7 28\u2014 self-defense \u2014 jury instructions \u2014 incorrect summary of evidence \u2014 error\nIn a homicide prosecution where defendant\u2019s entire defense was that he shot deceased in self-defense, the trial court erred in incorrectly summarizing the evidence with respect to deceased\u2019s behavior and possession of a knife just prior to the shooting.\nAPPEAL by defendant from Rouse, Judge. Judgment entered 11 January 1977 in Superior Court, New HANOVER County. Heard in the Court of Appeals 18 October 1977.\nDefendant was charged in an indictment, proper in form, with the first degree murder of William Herman Bordeaux.\nAt trial, the State presented evidence tending to show, inter alia, that on 17 October 1976, defendant, the deceased, one Mary Shepherd, and a woman who has since become defendant\u2019s wife, were together at defendant\u2019s place of residence; that they had been drinking for a period of time; and that defendant, without provocation, shot and killed Bordeaux with a .22 rifle.\nDefendant offered evidence tending to show that the deceased had a reputation of being dangerously violent and that the shooting was in self-defense.\nOther evidence necessary to an understanding of the errors assigned will be reviewed with the discussion of the assignments.\nThe jury returned a verdict of guilty of voluntary manslaughter. Judgment was rendered imposing a prison sentence of not less than sixteen nor more than eighteen years.\nAttorney General Edmisten, by Associate Attorney Amos Dawson, for the State.\nE. Hilton Newman, for defendant."
  },
  "file_name": "0598-01",
  "first_page_order": 626,
  "last_page_order": 629
}