{ "id": 8550699, "name": "STATE OF NORTH CAROLINA v. WALTER JONES", "name_abbreviation": "State v. Jones", "decision_date": "1969-12-17", "docket_number": "No. 692SC378", "first_page": "712", "last_page": "717", "citations": [ { "type": "official", "cite": "6 N.C. App. 712" } ], "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": "3 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631042 ], "opinion_index": 0, "case_paths": [ "/nc/215/0598-01" ] }, { "cite": "55 S.E. 2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628237 ], "opinion_index": 0, "case_paths": [ "/nc/231/0067-01" ] }, { "cite": "162 S.E. 2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "2 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552011 ], "opinion_index": 0, "case_paths": [ "/nc-app/2/0194-01" ] }, { "cite": "141 S.E. 2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571421 ], "opinion_index": 0, "case_paths": [ "/nc/264/0134-01" ] }, { "cite": "166 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558305 ], "opinion_index": 0, "case_paths": [ "/nc/275/0198-01" ] }, { "cite": "163 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560045 ], "opinion_index": 0, "case_paths": [ "/nc/274/0311-01" ] }, { "cite": "163 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "2 N.C. App. 282", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552688 ], "opinion_index": 0, "case_paths": [ "/nc-app/2/0282-01" ] }, { "cite": "158 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572884 ], "opinion_index": 0, "case_paths": [ "/nc/272/0327-01" ] }, { "cite": "128 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "85 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610424 ], "opinion_index": 0, "case_paths": [ "/nc/241/0356-01" ] }, { "cite": "166 S.E. 387", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614844 ], "opinion_index": 0, "case_paths": [ "/nc/203/0528-01" ] }, { "cite": "167 S.E. 2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "4 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555421 ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0661-01" ] }, { "cite": "163 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "2 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552812 ], "opinion_index": 0, "case_paths": [ "/nc-app/2/0305-01" ] } ], "analysis": { "cardinality": 584, "char_count": 13893, "ocr_confidence": 0.57, "pagerank": { "raw": 1.102676762150704e-07, "percentile": 0.5687431969971994 }, "sha256": "9e883f00ec306a4bad273718f653fdda131117fe060e78a187b9ef80da24ae66", "simhash": "1:a35c41693d5d509a", "word_count": 2363 }, "last_updated": "2023-07-14T21:07:50.917320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Beitt and Vaxtghn, JJ., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WALTER JONES" ], "opinions": [ { "text": "BROCK, J.\nDefendant assigns as error the refusal of the trial judge to allow his motion for nonsuit renewed at the close of all the evidence. Defendant strenuously argues that the physical facts as disclosed by defendant\u2019s evidence clearly establish that the shooting was accidental, that Jethroe Bonner himself caused the shotgun to fire when he snatched it by the barrel. He argues that the size of the wound and the lack of profuse bleeding clearly indicates that the shot was fired at close range, and that this physical fact shows that Bonner pulled the barrel to his own chest as defendant testified. However, \u25a0defendant overlooks the fact that there is absolutely no evidence in this record to indicate the size of the wound, and no positive evidence \u25a0of the amount of bleeding. Nevertheless, even if the shot was fired at \u25a0close range, such a physical fact would also be consistent with the State\u2019s evidence that the defendant intended to shoot \u201cBuddy\u201d Boyd, but that he shot the wrong man. Defendant himself testified that it was extremely dark that night and this testimony would tend to explain a misidentification of an intended victim.\nIt is true that defendant\u2019s evidence to some extent contradicts that of the State, but this conflict was for the jury, not the Court, to resolve. Where defendant offers evidence in his own behalf, his assignment of error must be directed to the Court\u2019s refusal to grant his motion for compulsory nonsuit at the close of all the evidence. G.S. 15-173; State v. Cotten, 2 N.C. App. 305, 163 S.E. 2d 100. And all of the evidence actually admitted, whether competent or incompetent, including that offered by defendant, if any, which is favorable to the State, must be taken into account and so considered by the Court in ruling upon a motion for nonsuit. State v. Walls, 4 N.C. App. 661, 167 S.E. 2d 547.\nDefendant further argues that the State failed to offer evidence that defendant intentionally killed the deceased; he relies heavily upon State v. Gregory, 203 N.C. 528, 166 S.E. 387. The holding in Gregory has been amplified as follows: \u201cIn S. v. Gregory (citation) where the defense was that an accidental discharge of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an intentional killing with a deadly weapon; and since the Gregory case it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression, intentional killing, is not used in the sense that a specific intent to kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. (Citations)\u201d State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322.\nWhen 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. State v. Foust, 258 N.C. 453, 128 S.E. 2d 889; State v. Gordon, supra. A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder. State v. Meadows, 272 N.C. 327, 158 S.E. 2d 638; State v. Gordon, supra. The intentional use of a deadly weapon, when death proximately results from such use, gives rise to the presumptions. State v. Gordon, supra. When considered in the light of the foregoing principles, and viewing the evidence in the light most favorable to the State, giving to the State the benefit of every reasonable inference that may be drawn, as must be done in passing upon a motion for nonsuit, State v. Adams, 2 N.C. App. 282, 163 S.E. 2d 1, we hold that the State\u2019s evidence was sufficient to require submitting the case to the jury.\nDefendant argues that he is entitled to a new trial because of error in allowing the arresting officer to testify as to inculpatory statements allegedly made to him by defendant without requiring a showing by the State that all of the Miranda warnings were given and that defendant freely, voluntarily and understandingly made the statements. Defendant did not object to the officer\u2019s testimony; nor did he in any way indicate that he desired an examination of the officer and findings by the trial judge upon the question. Defendant was content to allow the officer to relate his statements, and he cannot raise this objection for the first time on appeal. State v. Vickers, 274 N.C. 311, 163 S.E. 2d 481. We note also that William Hammie, as a witness for the State, testified, without objection, that defendant told him at the scene, \u201cI shot the wrong man.\u201d\nDefendant assigns as error that the trial judge refused to submit to the jury the question of defendant\u2019s guilt of the lesser included offense of manslaughter. \u201cUpon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, . . .\u201d G.S. 15-170. Where there is evidence of defendant\u2019s guilt of a lesser degree of the crime charged in the indictment, the court must submit to the jury the issue of defendant\u2019s guilt of such lesser included offense, and the error of failure to submit such issue to the jury is not cured by a verdict convicting defendant of the offense as charged. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652. However, the necessity for submitting to the jury the issue of defendant\u2019s guilt of a lesser included offense arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. State v. Jones, 264 N.C. 134, 141 S.E. 2d 27; State v. Williams, 2 N.C. App. 194, 162 S.E. 2d 688. In this case there is no evidence that requires submitting to the jury the issue of his guilt of voluntary manslaughter. Also, there is no evidence of culpable negligence in his handling of the shotgun, and therefore the issue of his guilt of involuntary manslaughter does not arise. Upon the evidence in this case we hold that the trial judge was correct in refusing to submit an issue of manslaughter to the jury.\nDefendant assigns as error several portions of the trial judge\u2019s instructions to the jury. We have considered the instructions in their entirety, and when read contextually, as must be done, we perceive no error prejudicial to defendant.\nIf defendant intended to assault \u201cBuddy\u201d Boyd with a deadly weapon, but by mistake assaulted Jethroe Bonner with a deadly weapon, thereby proximately causing Bonner\u2019s death, the presumptions would arise that the killing was unlawful and that it was done with malice; and defendant\u2019s guilt is the same as though he had killed \u201cBuddy\u201d Boyd. See State v. Heller, 231 N.C. 67, 55 S.E. 2d 800; State v. Burney, 215 N.C. 598, 3 S.E. 2d 24.\nDefendant strongly contended, and his evidence tended to show, that Jethroe Bonner caused his own death by snatching the barrel of the gun to his chest and causing it to fire the fatal shot. Under proper instructions from the Court the jury considered defendant\u2019s contention of an accidental shooting, but they resolved the conflict in the evidence against defendant. In our opinion the evidence supports the verdict and the verdict supports the judgment.\nNo error.\nBeitt and Vaxtghn, JJ., concur.", "type": "majority", "author": "BROCK, J." } ], "attorneys": [ "Robert Morgan, Attorney General, by Richard N. League, Staff Attorney, for the State.", "W. L. Whitley for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WALTER JONES\nNo. 692SC378\n(Filed 17 December 1969)\n1. Criminal Law \u00a7 164\u2014 refusal to nonsuit \u2014 assignment of error \u2014 evidence oifered by defendant\nWhere defendant offers evidence in his own behalf, his assignment of error must be directed to the court\u2019s refusal to grant his motion for compulsory nonsuit at the close of all the evidence. G.S. 15-173.\n2. Homicide \u00a7 14\u2014 presumptions from killing with deadly weapon\nWhen the killing with a deadly weapon is admitted or established, presumptions arise (1) that the killing was unlawful, and (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree.\n3. Homicide \u00a7\u00a7 4, 5\u2014 specific intent to kill \u2014 second degree murder\nA specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder.\n4. Homicide \u00a7 14\u2014 intentional use of deadly weapon \u2014 presumptions\nThe intentional use of a deadly weapon, when death proximately results from such use, gives rise to the presumptions of unlawfulness and malice. , ,\n5. Homicide \u00a7 21\u2014 second degree murder \u2014 sufficiency of evidence \u2014 physical facts \u2014 accidental death\nIn this prosecution for second degree murder, the physical facts as disclosed by defendant\u2019s evidence did not clearly establish an accidental shooting, and the case was properly submitted to the jury where the State\u2019s evidence tended to show that defendant intended to shoot a third person but mistakenly shot and killed the deceased.\n\u20226. Criminal Law \u00a7 76\u2014 inculpatory statements \u2014 Miranda warnings \u2014 necessity for voir dire \u2014 failure to object\nIn this prosecution for second degree murder, the trial court did not err in allowing the arresting officer to testify as to inculpatory statements allegedly made to him by defendant without requiring the State to show that the Miranda warnings were given and that defendant freely, voluntarily and understandingly made the statements, where defendant did not object to the officer\u2019s testimony or in any way indicate that he desired an examination of the officer and findings by the court.\n7. Criminal Law \u00a7 115\u2014 submission of lesser degrees of crime charged\nWhere there is evidence of defendant\u2019s guilt of a lesser degree of the crime charged in the indictment, the court must submit to the jury the issue of defendant\u2019s guilt of such lesser included offense, and the error of failure to submit such issue is not cured by a verdict convicting defendant of the offense as charged.\nS. Homicide \u00a7 30\u2014 second degree murder \u2014 failure to submit issue of manslaughter\nIn this prosecution for second degree murder, the trial court did not err in failing to submit to the jury the question of defendant\u2019s guilt of the lesser included offense of manslaughter.\n9. Homicide \u00a7 2\u2014 intent to kill another \u2014 mistaken killing of deceased\nIf defendant intended to assault a third person with a deadly weapon, but by mistake assaulted deceased with a deadly weapon, thereby proximately causing his death, the presumptions would arise that the killing was unlawful and with malice, and defendant\u2019s guilt is the same as though he had killed the third person.\nAppeal by defendant from Fountain, J., 28 April 1969 Session, WASHINGTON Superior Court.\nDefendant was charged in a bill of indictment, proper in form, with the felony of murder. Upon the case being called for trial the solicitor announced that the State would not seek a conviction of murder in the first degree, but would seek a verdict of guilty of murder in the second degree or any lesser included offense. Defendant entered a plea of not guilty.\nThe State offered evidence which tended to show the following: On 19 January 1969 defendant\u2019s wife and children had gone to the home of William and Juanita Hammie on West Water Street in the Town of Plymouth. The Hammie home was about three houses from defendant\u2019s home. The deceased, Jethroe Bonner, one William \u201cBuddy\u201d Boyd, and several other persons were also visiting in the Hammie home. The deceased, Jethroe Bonner, lived next door to the Hammies. Jethroe Bonner left the Hammie house shortly before midnight to go to his home and about fifteen minutes later a shot was heard outside the Hammie house. When the light on the Hammie front porch was turned on, Jethroe Bonner was lying on the ground gasping for breath and defendant was \u201cstanding over him\u201d with a shotgun in his hand. Defendant stated, \u201cI shot the wrong man.\u201d The next day defendant told the arresting officer that he did not have anything against Jethroe Bonner and that he did not intend to shoot him, that he just made a mistake. He told the arresting officer that he had intended to shoot \u201cBuddy\u201d Boyd, but that he shot the wrong man. He further told the officer that he was standing about fifteen feet from Jethroe Bonner when the gun fired. Jethroe Bonner was dead upon arrival at the hospital. The cause of death was a wound in the chest from the load of one shotgun shell.\nDefendant offered evidence which tended to show the following: \u201cBuddy\u201d Boyd had been \u201crunning around\u201d with defendant\u2019s wife, and on several occasions had engaged in altercations with defendant. On the night in question, 19 January 1969, defendant went to the home of William and Juanita Hammie shortly before midnight to get his wife and children to come home. \u201cBuddy\u201d Boyd, who was also visiting at the Hammie residence, came out of the house and slapped defendant. A brief fight ensued. \u201cBuddy\u201d Boyd told defendant: \u201cThat\u2019s all right, you got me now but I will get something. I'll come back, I\u2019m going to finish you off.\u201d Defendant then left the Hammie house and returned to his own home where he secured his shotgun. He obtained the shotgun to protect himself from \u201cBuddy\u201d Boyd. He then started back to the Hammie house to get his wife and children. As he walked along with the shotgun under his arm he did not see anyone. Jethroe Bonner suddenly grabbed the barrel of the shotgun, snatched the gun from under defendant\u2019s arm and it fired, the load from the shell striking Jethroe in the chest. Defendant did not see Jethroe Bonner until after he snatched the gun.\nFrom a verdict of guilty of murder in the second degree, and from judgment of imprisonment, defendant appealed.\nRobert Morgan, Attorney General, by Richard N. League, Staff Attorney, for the State.\nW. L. Whitley for defendant." }, "file_name": "0712-01", "first_page_order": 736, "last_page_order": 741 }