{ "id": 8552046, "name": "STATE OF NORTH CAROLINA v. COUNCIL GRAHAM", "name_abbreviation": "State v. Graham", "decision_date": "1978-09-19", "docket_number": "No. 7816SC285", "first_page": "86", "last_page": "90", "citations": [ { "type": "official", "cite": "38 N.C. App. 86" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "46 S.E. 2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "722" } ], "opinion_index": 0 }, { "cite": "228 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627628 ], "year": 1948, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0595-01" ] }, { "cite": "51 Okla. Crim., 209", "category": "reporters:state", "reporter": "Okla. Crim.", "case_ids": [ 8742260 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/okla-crim/51/0209-01" ] }, { "cite": "128 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "parenthetical": "where deceased grabbed a gun lying across defendant's knees, he got it away from her, she got it again near the end of the barrel, and \"the gun went off\"" } ], "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "year": 1962, "pin_cites": [ { "parenthetical": "where deceased grabbed a gun lying across defendant's knees, he got it away from her, she got it again near the end of the barrel, and \"the gun went off\"" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "190 S.E. 2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "where defendant testified that she and deceased were \"fumbling with the gun\", he tried to get it away from her, and the gun \"went off\"" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550757 ], "year": 1972, "pin_cites": [ { "parenthetical": "where defendant testified that she and deceased were \"fumbling with the gun\", he tried to get it away from her, and the gun \"went off\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0395-01" ] }, { "cite": "185 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "279 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571995 ], "year": 1971, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0676-01" ] } ], "analysis": { "cardinality": 560, "char_count": 10240, "ocr_confidence": 0.825, "pagerank": { "raw": 8.354343298525438e-08, "percentile": 0.48125759455474043 }, "sha256": "9839e9161960154cca9cc5154bf99b61c9c44e3a2ec9502505b3be9a517bf2eb", "simhash": "1:4316307d37ad4062", "word_count": 1760 }, "last_updated": "2023-07-14T21:32:33.594298+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Webb concur." ], "parties": [ "STATE OF NORTH CAROLINA v. COUNCIL GRAHAM" ], "opinions": [ { "text": "MORRIS, Judge.\nDefendant contends, by his fifth assignment of error, that the court erred in failing to charge the jury that they could return a verdict of guilty of involuntary manslaughter as a possible verdict. We are inclined to agree that defendant\u2019s evidence makes this instruction necessary. The State argues that the record reflects that defendant was the aggressor throughout the altercation and that, after shooting at deceased and missing him he moved closer and shot a second time, killing him. This is certainly what the State\u2019s evidence tended to show. However, the defendant testified for himself. His version was entirely different. He maintained that neither shot was fired at anybody. He said that when he fired the first time, he did not aim at anybody. As to the fatal shot, he said that as deceased was coming at him, \u201che throwed up the gun and it went off\u201d.\n\u201cInvoluntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. [Citations omitted.]\u201d State v. Wrenn, 279 N.C. 676, 682, 185 S.E. 2d 129, 132 (1971).\nHere the defendant\u2019s testimony was, in its entirety, a version of an unintentional killing. He fired two shots, the first aimed at no one but intended to break up a fight, and the second, accidentally when \u201che throwed up the gun and it went off\u201d. If believed by the jury, defendant\u2019s evidence is sufficient to support a verdict of guilty of involuntary manslaughter. See State v. Davis, 15 N.C. App. 395, 190 S.E. 2d 434 (1972) (where defendant testified that she and deceased were \u201cfumbling with the gun\u201d, he tried to get it away from her, and the gun \u201cwent off\u201d); and State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1962) (where deceased grabbed a gun lying across defendant\u2019s knees, he got it away from her, she got it again near the end of the barrel, and \u201cthe gun went off\u201d).\nBecause the court failed to submit an issue of involuntary manslaughter to the jury, there must be a new trial.\nDefendant\u2019s other assignments of error are without merit, with the exception of his first assignment of error. During his cross-examination of defendant, the district attorney put the shirt worn by defendant at the time of the incident before the defendant, handed defendant the knife, and directed defendant to try to cut the shirt. Over defendant\u2019s objection, the witness was directed to cut the shirt.\n\u201cThe competency of experimental evidence depends upon its trustworthiness to aid in the proper solution of the problem in hand. [Citations omitted.] When the experiment is carried out under substantially similar circumstances to those which surrounded the original transaction, and in such a manner as to shed light on that transaction, the results may be received in evidence, although such experiment may not have been performed under precisely similar conditions as attended the original occurrence. The want of exact similarity would not perforce exclude the evidence, but would go to its weight with the jury. 1 Michie on Homicide, 832. Whether the circumstances and conditions are sufficiently similar to render the results of the experiment competent is of course a preliminary question for the court, and unless too wide of the mark, the ruling thereon will be upheld on appeal. [Citations omitted.]\n\u2018The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient\u2019\u2014 Edwards, J., in Shepherd v. State, 51 Okla. Crim., 209, 300 P., 421.\u201d State v. Phillips, 228 N.C. 595, 598, 46 S.E. 2d 720, 722 (1948).\nWe think it obvious that this experiment fell far short of being conducted under circumstances substantially similar to those existing at the time of the incident when the defendant\u2019s shirt was allegedly cut and was thus \u201ctoo wide of the mark\u201d to be upheld on appeal.\nNew trial.\nJudges Hedrick and Webb concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Norman M. York, Jr., for the State.", "Edwards and Johnston, by Rudolph L. Edwards, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. COUNCIL GRAHAM\nNo. 7816SC285\n(Filed 19 September 1978)\n1. Homicide \u00a7 30.3\u2014 necessity for instruction on involuntary manslaughter\nThe trial court in a homicide case erred in failing to instruct the jury on involuntary manslaughter where defendant testified that he fired one shot not aimed at anybody but intended to break up a fight, and that he then fired the fatal shot unintentionally when defendant came at him with a knife and he \u201cthrowed up the gun and it went off.\u201d\n2. Criminal Law \u00a7 45.1\u2014 experimental evidence \u2014 cutting shirt with knife \u2014 circumstances not similar\nIn a homicide prosecution in which defendant testified that deceased had cut his shirt with a knife during the altercation which resulted in deceased\u2019s death, the trial court erred in permitting the district attorney to ask defendant to try to cut the shirt worn by defendant at the time of the incident with deceased\u2019s knife since the experiment was not conducted under circumstances substantially similar to those existing when defendant\u2019s shirt was allegedly cut by deceased.\nAppeal by defendant from Lee, Judge. Judgment entered 15 September 1977, Superior Court, ROBESON County. Heard in the Court of Appeals 15 August 1978.\nDefendant was charged with murder. At trial, the district attorney announced that he would seek no greater verdict than a verdict of guilty of second degree murder. Defendant was convicted of voluntary manslaughter and appeals from the judgment entered on the jury verdict.\nThe State\u2019s evidence tended to show the following events:\nDefendant, deceased, and several other people were - at a house in Lumberton on Saturday night, 13 February 1977. The house was known as \u201cHole in the Wall\u201d, and, according to one witness, \u201ca lot of drinking was going on there\u201d. Deceased and S. L. Graham got into a fight outside the house. They were separated by some of the people at the house, who took deceased about 30 feet from the house near some woods. He was \u201ccussing and going on\u201d. S. L. Graham and defendant started toward deceased, S. L. Graham carrying a stick and Council Graham carrying a \u201cblue-black revolver type gun\u201d. They were asked to stop before someone got hurt. They did so, and defendant turned and went back into the house. Deceased started back to the house still \u201ccussing and carrying on\u201d. Defendant came out of the house, and he and deceased began cursing at each other. Deceased was between two cars. Defendant walked over next to the car and shot across the roof of the car. Deceased \u201chunched down close to the roof and ducked his head down\u201d. State\u2019s witnesses testified that they saw deceased \u201cdo nothing with his hands\u201d. That shots hit a Ford Courier truck and a black Grand Torino. The cursing continued. One witness testified that deceased remained \u201ccrouched down\u201d after the first shot and that defendant said: \u201cSon of a bitch, I\u2019ll kill you\u201d, and walked around the car and shot deceased with the barrel of the gun only \u201ca couple of inches\u201d from deceased\u2019s head. Another witness testified that deceased \u201cstooped down at the end of the car when the gun was fired. He then stood back up and continued to cuss at- Council. Council went around the back of the car and shot Willie\u201d. Both witnesses testified that deceased fell to the ground and that defendant walked away carrying the gun without offering any assistance to the victim.\nDefendant testified that he \u201cknew of\u2019 Willie Lee Lowrey before this incident but did not know him; that he had been to a cookout at Wyvin Locklear\u2019s that night, leaving about 11 o\u2019clock; that after leaving the cookout, he went to the home of Brantley Chavis in Pembroke; that Brantley asked defendant to take him to his brother-in-law\u2019s place called \u201cBig Johnny\u2019s\u201d; that defendant had drunk only \u201ca couple of beers\u201d that night; that defendant, \u201cWyvin Locklear, Brantley Chavis, J. R. Graham, and S. L. Lock-lear (sic) ... all went there together\u201d; that after they got inside, a \u201clittle ruckus\u201d started, and Willie Lee Lowrey hit Brantley Chav-is \u201cupside the head\u201d; that as they were attempting to break up the fight, Willie Lee Lowrey pulled out a knife; that the knife was open, and Willie Lee swung it at defendant as defendant tried to break up the fight; that S. L. Graham grabbed Willie Lee, pulled him outside, and threw him on the ground; that the two men were pulled apart, and some others pulled Willie Lee away; that Willie Lee was saying, \u201cI\u2019m going to kill him the son of a bitch. I\u2019m going to kill him\u201d; that about this time, Willie Lee started at defendant who ran in front of a car to get out of his way; that defendant had pulled his gun out and \u201cshot it trying to keep him away\u201d; that he shot the gun up in the air, but Willie continued to come; that defendant was facing the automobile on the right hand side \u201ctoward the front\u201d and was not aiming at anybody when he shot; that two men grabbed Willie Lee, and defendant thought they had control of him and was attempting to get by him to his car, intending to leave; Willie Lee was between him and his car, still had the knife, and was still threatening defendant; Willie broke loose and began running at him with a knife; that Willie was right at defendant when he swung the knife at defendant and cut defendant\u2019s shirt and undershirt; that when Willie Lee came at him and tried to cut him, defendant \u201cthrowed up the gun and it went off and he fell and I touched to see if he was dead\u201d; that he was told that Willie Lee was dead, and he tried to feel his pulse; that he figured there might be more trouble, so he told the others to tell the deputies he would be home when they came for him; that he then took the men home who came with him and went home.\nAdditional facts necessary for decision are set out in the opinion.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Norman M. York, Jr., for the State.\nEdwards and Johnston, by Rudolph L. Edwards, for defendant appellant." }, "file_name": "0086-01", "first_page_order": 114, "last_page_order": 118 }