{
  "id": 8550733,
  "name": "STATE OF NORTH CAROLINA v. JAMES MILTON ALSTON",
  "name_abbreviation": "State v. Alston",
  "decision_date": "1979-11-20",
  "docket_number": "No. 797SC498",
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  "last_updated": "2023-07-14T22:44:31.887789+00:00",
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  "casebody": {
    "judges": [
      "Judges ERWIN and HILL concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES MILTON ALSTON"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nDefendant assigns error in the denial of his motion for non-suit at the close of the State\u2019s evidence. Defendant presented evidence following the denial of his motion and did not renew the motion. \u201cIf the defendant introduces evidence, he thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal.\u201d G.S. 15-173; State v. Rhyne, 39 N.C. App. 319, 250 S.E. 2d 102 (1979).\nPursuant to G.S. 15A-1227(d) and G.S. 15A-1446(d)(5), defendant could have requested review of the sufficiency of all of the evidence without regard to whether the proper motion or exception had been made during trial. On our own motion, we have reviewed the sufficiency of all the evidence to take the case to the jury.\nDefendant was convicted of second-degree murder which is the unlawful killing of a human being with malice but without premeditation and deliberation..\n\u201cThe intentional use of a deadly weapon proximately causing death gives rise to presumptions that (1) the killing was unlawful, and (2) the killing was done with malice. This is second-degree murder.\u201d State v. Bush, 289 N.C. 159, 170, 221 S.E. 2d 833, 340, death sentence vacated, 429 U.S. 809, 50 L.Ed. 2d 69, 97 S.Ct. 45 (1976); see also State v. Rummage, 280 N.C. 51, 185 S.E. 2d 221 (1971).\nMalice on the part of defendant is established in the case by inference from the use of a deadly weapon and by the surrounding circumstances including the two earlier assaults and the accusations concerning deceased\u2019s romantic relationship with defendant\u2019s wife. We hold the State presented sufficient evidence of the essential elements of second-degree murder to take the case to the jury.\nDefendant\u2019s only other assignment of error is in the trial judge\u2019s instruction to the jury on the law of self-defense. The trial judge instructed:\n\u201cNow, a killing would be excused entirely on the grounds of self-defense, if: First, it appeared to the defendant and he believed it to be necessary to shoot Mitchell in order to save himself from death or great bodily harm, and, second, the circumstances as they appeared to the defendant at the time were sufficient to create such a belief in the mind of a person of ordinary-:firmness. It is for you the jury to determine the reasonableness of the defendant\u2019s belief from the circumstances as \"they appeared to him at the time.\u201d (Emphasis added.)\nThis properly instructs the jury that \u201cone may fight in self-defense and may use more force than is actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief.\u201d State v. Francis, 252 N.C. 57, 59, 112 S.E. 2d 756, 758 (1960); see also State v. Hearns, 9 N.C. App. 42, 175 S.E. 2d 376 (1970).\nNo error.\nJudges ERWIN and HILL concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Luden Capone III, for the State.",
      "J. Henry Banks, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES MILTON ALSTON\nNo. 797SC498\n(Filed 20 November 1979)\n1. Criminal Law \u00a7 105.1\u2014 motion for nonsuit \u2014 renewal of motion\nDefendant waived his motion for nonsuit made at the close of the State\u2019s evidence by presenting evidence and failing to renew his motion, but pursuant to G.S. 15A-1227(d) and G.S. 15A-1446(d)(5), defendant could have requested review of the sufficiency of all the evidence without regard to whether the proper motion or exception had been made during trial.\n2. Homicide \u00a7 21.7\u2014 second degree murder \u2014 sufficiency of evidence\nEvidence was sufficient for the jury in a second degree murder case where it tended to show that defendant accused deceased of being romantically involved with his wife; defendant twice assaulted deceased; and defendant then entered deceased\u2019s house and shot him in the head.\n3. Homicide \u00a7 28.2\u2014 self-defense \u2014 use of force \u2014apparent necessity \u2014 jury instructions proper\nThe trial court\u2019s instructions on self-defense in a second degree murder prosecution properly explained to the jury that defendant could use more force than was actually necessary if he believed it to be necessary and had a reasonable ground for the belief.\nAPPEAL by defendant from Rouse, Judge. Judgment entered 25 January 1979 in Superior Court, NASH County. Heard in the Court of Appeals 16 October 1979.\nDefendant was indicted for first degree murder in the 22 September 1978 slaying of Thomas Mitchell. Defendant appeals from a guilty verdict of murder in the second degree.\nThe State\u2019s evidence tended to show the following. On the day of the killing, defendant accused Mitchell of romantic relations with his wife. Defendant called Mitchell out of his home and a fight ensued after defendant grabbed Mitchell and slapped him. Defendant and Mitchell were separated by friends. Defendant left Mitchell\u2019s home but later returned and another fight ensued. In this fight, Mitchell hit defendant with a wrench, cutting defendant\u2019s head. Mitchell went back into his home, and defendant went to his car to get a cloth to wipe the blood from his eyes and face. Defendant took a shotgun from his car trunk and returned to Mitchell\u2019s home. He entered the house and searched for Mitchell finding him in a back bedroom. Defendant opened the door, raised the gun and said, \u201cAh, slick, you\u2019re a dead . . . now\u201d as he pulled the trigger. The shot struck Mitchell\u2019s left cheek and passed into the brain, destroying vital centers. The officers first on the scene found deceased in a kneeling position in the farthest corner from the door with a large puddle of blood beneath him. A wrench was found between his legs.\nDefendant testified at trial that deceased was coming at him with a wrench. The gun which he had for his protection \u201cjust went off.\u201d His confession to the officers at the scene, however, was to the effect that he pointed the shotgun at deceased and shot him as he backed up in the corner.\nAttorney General Edmisten, by Associate Attorney Luden Capone III, for the State.\nJ. Henry Banks, for defendant appellant."
  },
  "file_name": "0072-01",
  "first_page_order": 100,
  "last_page_order": 103
}