{
  "id": 8553419,
  "name": "STATE OF NORTH CAROLINA v. WEATHERSPOON McLAURIN",
  "name_abbreviation": "State v. McLaurin",
  "decision_date": "1980-05-20",
  "docket_number": "No. 7914SC1162",
  "first_page": "746",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "year": 1979,
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      "cite": "297 N.C. 151",
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      "cite": "252 S.E. 2d 781",
      "category": "reporters:state_regional",
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      "year": 1979,
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    {
      "cite": "297 N.C. 24",
      "category": "reporters:state",
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      "year": 1975,
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      "cite": "220 S.E. 2d 575",
      "category": "reporters:state_regional",
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      "year": 1975,
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    {
      "cite": "288 N.C. 632",
      "category": "reporters:state",
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      "year": 1975,
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  "last_updated": "2023-07-14T21:32:37.131990+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges MARTIN (Robert M.) and WEBB concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WEATHERSPOON McLAURIN"
    ],
    "opinions": [
      {
        "text": "HILL, Judge.\nDefendant first contends that the trial court erred in charging the jury that an intentional killing by means of a deadly weapon raises the inference that such a killing was unlawful and done with malice, even when self-defense is at issue. We find no error.\nDefendant contends unlawfulness and malice could not be presumed from a finding of an intentional killing by means of a deadly weapon until after the jury had found the absence of self-defense on the part of the defendant beyond a reasonable doubt. Appellant relies upon State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), reversed on other grounds 432 U.S. 233, 53 L.Ed. 2d 306, 97 S.Ct. 2339 (1977), which interpreted Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975). The Court in Hankerson, supra, at p. 651, stated that:\n[T]he State must bear the burden throughout the trial of proving each element of the crime charged including, where applicable, malice and unlawfulness beyond a reasonable doubt, ... If, after the mandatory presumptions [of malice and unlawfulness] are raised, there is no evidence of a heat of passion killing on sudden provocation and no evidence that the killing was in self-defense, Mullaney permits and our law requires the jury to be instructed that defendant must be convicted of murder in the second degree. ... If there is evidence in the case of all the elements of self-defense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. If upon considering all the evidence, including the inferences and evidence of self-defense, the jury is left with a reasonable doubt as to the existence of unlawfulness it must find the defendant not guilty. (Emphasis added.)\nThe trial court herein charged upon the permissible inference of unlawfulness and malice as follows:\nIf the State proves beyond a reasonable doubt, or it is admitted that this defendant intentionally killed Lucille Surles with a deadly weapon, or intentionally inflicted a wound upon Lucille Surles with a deadly weapon which proximately caused her death, you may infer first that the killing was unlawful; and second, that it was done with malice, but you are not compelled to do so. You may consider the inferences along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice. If you infer that the killing was unlawful and was done with malice, the defendant would be guilty of second degree murder. (Emphasis added.)\nThe above portion of the trial court\u2019s charge is virtually identical to the language recommended by our Supreme Court in State v. Harris, 297 N.C. 24, 28, 252 S.E. 2d 781 (1979), a case in which murder in the second degree was charged and where self-defense was at issue. Our Court recommended the trial courts charge that:\nIf the State proves beyond a reasonable doubt, or it is admitted, that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused his death, you may infer first, that the killing was unlawful, and second that it was done with malice, but you are not compelled to do so. You may consider the inferences along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice. (Emphasis added.)\nThe language suggested in State v. Harris, supra, and the portion of the charge to which appellant excepted, allow the jury to consider all facts and circumstances, including evidence of self-defense, in determining whether the killing was unlawful. When the issue of self-defense is raised, the State continues to have the burden of proving each element of the crime of murder in the second degree beyond a reasonable doubt. Simultaneously, the additional burden is added of proving malice based on inferences rather than presumptions. The language in the court\u2019s charge clearly follows the principles set forth in Hankerson, supra.\nWhen evidence of self-defense is presented in a murder in the second degree case, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. Hankerson, supra. The Court by its charge allowed the jury to consider the evidence of self-defense in addition to the permissible inference of unlawfulness in determining whether the killing was unlawful and did not deprive the defendant of due process of law.\nDefendant contends the trial judge should have submitted an instruction on defense of habitat or domicile. It is well settled in North Carolina that the defense of habitation or domicile is limited to those cases where a defendant is attempting to prevent a forcible entry into his home. State v. McCombs, 297 N.C. 151, 253 S.E. 2d 906 (1979). In the case sub judice there is no evidence the defendant was acting to prevent a forcible entry into his home. The deceased and her daughter were already in defendant\u2019s home when first observed by the defendant. The trial judge correctly refused to charge on defense of habitation or domicile and proceeded to charge on self-defense.\nDefendant attacks the judge\u2019s charge saying that the judge erred in failing to charge there was no duty on the part of the defendant to retreat within his habitat or domicile. We agree.\nIn the present case, not only was the defendant on his own premises, but there is evidence that the deceased carried a pistol; that she reached into her pocket as if going for a gun; that the deceased told the defendant that she would give him \u201csix little bullets\u201d; that the defendant thought the deceased intended to follow through with her threat.\nA person is not obligated to retreat when he is assaulted in his dwelling house or within the curtilage thereof, whether the assailant be an intruder or another lawful occupant of the premises. State v. Browning, 28 N.C. App. 376, 221 S.E. 2d 375 (1976). Under the circumstances, it was error for the judge to fail to charge upon the defendant\u2019s right to stand his ground without retreating.\nWe do not consider the remaining assignments of error since we must award the defendant a\nNew trial.\nJudges MARTIN (Robert M.) and WEBB concur.",
        "type": "majority",
        "author": "HILL, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Francis W. Crawley, for the State.",
      "Loflin, Loflin, Galloway & Acker, by Thomas F. Loflin III and James R. Acker, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WEATHERSPOON McLAURIN\nNo. 7914SC1162\n(Filed 20 May 1980)\n1. Homicide \u00a7 24.1\u2014 use of deadly weapon \u2014 instruction on inferences proper\nThe trial court did not err in charging the jury that an intentional killing by means of a deadly weapon raised the inference that such a killing was unlawful and done with malice, even when self-defense was at issue.\n2. Homicide \u00a7 28\u2014 defense of habitat \u2014 instruction not required\nDefendant in a homicide prosecution was not entitled to an instruction on defense of habitat where there was no evidence that defendant was acting to prevent a forcible entry into his home.\n3. Homicide \u00a7 28.4\u2014 no duty to retreat within habitat \u2014 failure to instruct error\nThe trial court in a homicide prosecution erred in failing to charge that there was no duty on the part of defendant to retreat within his habitat, since the evidence tended to show that defendant was on his own premises; deceased carried a pistol; deceased reached into her pocket as if going for a gun; deceased told defendant that she would give him \u201csix little bullets\u201d; and defendant thought deceased intended to follow through with her threat.\nAPPEAL by defendant from Brewer, Judge. Judgment entered 16 August 1979 in Superior Court, DURHAM County. Heard in the Court of Appeals 23 April 1980.\nThe defendant appellant was tried and convicted for the murder in the second degree of Lucille Surles. Surles had been doing housework for defendant, aged 60, and his mother, aged 86. Defendant had loaned Surles money from time to time, and recently had loaned her $300.00.\nOn the day of the slaying, defendant had been drinking liquor and taking medicine. Surles\u2019 daughter testified that on the night of 9 January 1979, at about 10:30 or 11:00 p.m., defendant telephoned her house and asked to speak with her mother; that she advised defendant her mother was asleep; that defendant hung up but called back and told the daughter to tell Surles that defendant\u2019s mother was on her deathbed.\nSurles and her daughter drove to defendant\u2019s home, arriving at about 11:00 p.m. They were let into the house by defendant and walked into the bedroom where defendant\u2019s mother generally stayed. Defendant\u2019s mother was not in the room, and defendant pulled a gun out of his pocket and told the victim, \u201cI called your goddamn ass over here to kill you,\u201d and shot Surles one time. Surles\u2019 daughter made an effort to call for help on the telephone, and defendant fired a second shot into her mother. The daughter testified that she heard defendant tell her mother that he meant to kill her.\nDefendant testified on his own behalf, stating that he believed he had to shoot the victim in self-defense; that he had received $11,000 in a disability claim and had spent great portions of it on the victim and her children; that the victim entered his house while he \u201c. . . was drunk, laying down,\u201d using her key; that he asked the victim for his money and she told the defendant she was going to give him \u201csix little bullets\u201d and reached into her coat pocket. Defendant, knowing the victim carried a gun and believing she was going to kill him, shot her twice with his pistol.\nThe trial judge charged the jury on murder in the second degree, and voluntary manslaughter, and gave an instruction on self-defense. Defendant requested a charge on defense of domicile, which was refused. The jury returned a verdict of murder in the second degree, and defendant appealed.\nAttorney General Edmisten, by Associate Attorney Francis W. Crawley, for the State.\nLoflin, Loflin, Galloway & Acker, by Thomas F. Loflin III and James R. Acker, for defendant appellant."
  },
  "file_name": "0746-01",
  "first_page_order": 774,
  "last_page_order": 778
}
