{ "id": 8625255, "name": "STATE v. EUGENE CHILDRESS", "name_abbreviation": "State v. Childress", "decision_date": "1947-11-19", "docket_number": "", "first_page": "208", "last_page": "210", "citations": [ { "type": "official", "cite": "228 N.C. 208" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "223 N. C., 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616001 ], "opinion_index": 0, "case_paths": [ "/nc/223/0697-01" ] }, { "cite": "217 N. C., 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611026 ], "opinion_index": 0, "case_paths": [ "/nc/217/0483-01" ] }, { "cite": "222 N. C., 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630766 ], "opinion_index": 0, "case_paths": [ "/nc/222/0428-01" ] }, { "cite": "226 N. C., 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623502 ], "opinion_index": 0, "case_paths": [ "/nc/226/0628-01" ] }, { "cite": "51 S. E., 945", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "139 N. C., 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653230 ], "opinion_index": 0, "case_paths": [ "/nc/139/0588-01" ] }, { "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": "222 N. C., 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629795 ], "opinion_index": 0, "case_paths": [ "/nc/222/0266-01" ] }, { "cite": "175 S. E., 296", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N. C., 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632381 ], "opinion_index": 0, "case_paths": [ "/nc/206/0682-01" ] }, { "cite": "223 N. C., 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609148 ], "opinion_index": 0, "case_paths": [ "/nc/223/0392-01" ] }, { "cite": "223 N. C., 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600687 ], "opinion_index": 0, "case_paths": [ "/nc/223/0129-01" ] }, { "cite": "223 N. C., 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611310 ], "opinion_index": 0, "case_paths": [ "/nc/223/0461-01" ] }, { "cite": "226 N. C., 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622632 ], "opinion_index": 0, "case_paths": [ "/nc/226/0571-01" ] }, { "cite": "88 S. E., 501", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N. C., 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272436 ], "opinion_index": 0, "case_paths": [ "/nc/171/0788-01" ] }, { "cite": "143 S. E., 187", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N. C., 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630764 ], "opinion_index": 0, "case_paths": [ "/nc/195/0552-01" ] }, { "cite": "174 S. E., 288", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N. C., 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630627 ], "opinion_index": 0, "case_paths": [ "/nc/206/0412-01" ] }, { "cite": "219 N. C., 811", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626689 ], "opinion_index": 0, "case_paths": [ "/nc/219/0811-01" ] }, { "cite": "153 S. E., 605", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C., 9", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594761 ], "opinion_index": 0, "case_paths": [ "/nc/199/0009-01" ] }, { "cite": "227 N. C., 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625589 ], "opinion_index": 0, "case_paths": [ "/nc/227/0409-01" ] } ], "analysis": { "cardinality": 468, "char_count": 7698, "ocr_confidence": 0.488, "pagerank": { "raw": 2.6163224228152096e-07, "percentile": 0.8209019135864678 }, "sha256": "c61750935f26b8a00cd48f9349fa7aafe31a11e9728f6f7332a5157ebf3fd533", "simhash": "1:b42d602238157f73", "word_count": 1410 }, "last_updated": "2023-07-14T21:52:37.324265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. EUGENE CHILDRESS." ], "opinions": [ { "text": "Stacy, C. J.\nThe defendant is charged with the murder of his wife. He pleads uxoricide by misadventure. There is evidence to support the charge and there is evidence to support the defendant\u2019s plea. There is also evidence of manslaughter, i.e., of an unlawful killing without malice. S. v. Staton, 227 N. C., 409. In these circumstances, the statute, G. S., 15-170, requires that the \u201cless degree of the same crime\u201d be submitted to the jury with proper instructions. S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605; S. v. Sheek, 219 N. C., 811, 15 S. E. (2d), 282.\nTbe general rule of practice is, that when it is permissible under the indictment, as here, to convict the defendant of \u201ca less degree of the same crime,\u201d and there is evidence to support the milder verdict, the defendant is entitled to have the different views arising on the evidence presented to the jury under proper instructions, and an error in this respect is not cured by a verdict finding the defendant guilty of a higher degree of the same crime, for in such case, it cannot be known whether the jury would have convicted of the lesser degree if the different views, arising on the evidence, had been correctly presented in the court\u2019s charge. S. v. Lee, 206 N. C., 412, 174 S. E., 288; S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Merrick, 171 N. C., 788, 88 S. E., 501.\nAn intentional killing with a deadly weapon raises two presumptions against the killer, first, that the killing was unlawful, and, second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. S. v. Floyd, 226 N. C., 571, 39 S. E. (2d), 598; S. v. DeGraffenreid, 223 N. C., 461, 27 S. E. (2d), 130; S. v. Burrage, 223 N. C., 129, 25 S. E. (2d), 393. It should be noted that these presumptions arise only from an intentional killing with a deadly weapon; and, even then, they may be rebutted \u2014 in part by showing no malice which would reduce the offense to manslaughter, and altogether by showing self-defense, unavoidable accident or misadventure, which would excuse the homicide and deprive it of any unlawfulness. S. v. Snead, ante, 37; S. v. Prince, 223 N. C., 392, 26 S. E. (2d), 875; S. v. Keaton, 206 N. C., 682, 175 S. E., 296. The presumptions do not arise from the mere fact of a killing with a deadly weapon. S. v. Debnam, 222 N. C., 266, 22 S. E. (2d), 562; S. v. Gregory, 203 N. C., 528, 166 S. E., 387; S. v. Horton, 139 N. C., 588, 51 S. E., 945. The deadly purpose of the use of the weapon, when accomplished, is what gives rise to the presumptions; and, unless admitted, this must be established by proof. S. v. Ellison, 226 N. C., 628, 39 S. E. (2d), 824; S. v. Baker, 222 N. C., 428, 23 S. E. (2d), 340; S. v. Redman, 217 N. C., 483, 8 S. E. (2d), 623.\nThe intensity of proof required to establish an intentional killing with a deadly weapon, where not admitted, is \u201cbeyond a reasonable doubt.\u201d The degree of proof required to rebut the presumption arising from an intentional killing with a deadly weapon, when established or admitted, is \u201cto the satisfaction of the jury.\u201d S. v. Harris, 223 N. C., 697, 28 S. E. (2d), 232.\nThe exception addressed to the failure of the court to submit to the jury the lesser degree of the crime charged, i.e., manslaughter, is well interposed and must be sustained.\nNew trial.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.,", "Folger & Folger and Woltz & Barber for defendant." ], "corrections": "", "head_matter": "STATE v. EUGENE CHILDRESS.\n(Filed 19 November, 1947.)\n1. Homicide \u00a7 27b. \u2014 \u2022\nDefendant testified to the effect that he was a taxicab driver and carried a pistol in his taxi, that upon reaching home he took the gun in the house, and that the pistol accidentally discharged, inflicting fatal injury to his wife, as he was throwing it on the bed. Held: It was error for the court to fail to submit to the jury the question of defendant\u2019s guilt of manslaughter, and a new trial is awarded upon his appeal from conviction of murder in the second degree.\n2. Criminal Law \u00a7 53g\u2014\nWhere there is evidence of defendant\u2019s guilt of a less degree of the crime included in the bill of indictment, defendant is entitled to have the question submitted to the jury. G. S., 15-170.\n3. Criminal Law \u00a7 81c (4)\u2014\nError in failing to submit the question of defendant\u2019s guilt of a less degree of the crime is not cured by a verdict of guilty of a higher offense, since it cannot be known whether the jury would have rendered a milder verdict if permitted to do so.\n4. Homicide \u00a7 16\u2014\nThe rebuttable presumptions that the killing was unlawful and that it was done with malice do not arise from the mere fact of a killing with a deadly weapon, but it is also necessary that the killing be intentional in order for the presumptions to obtain.\n.5. Same\u2014\nThe intensity of proof requix-ed.to establish an intentional killing with a deadly weapon, where not admitted, is \u201cbeyond a reasonable doubt.\u201d The degree of proof required to rebut the presumption arising from an intentional killing with a deadly weapon, when established or admitted, is \u201cto the satisfaction of the jury.\u201d\nAppeal by defendant from Bobbitt, J., at July Term, 1947, of Subry.\nCriminal prosecution on indictment charging the defendant with the murder of Mary Childress.\nWhen the case was called for trial, the solicitor announced that he would not prosecute on the capital charge, but would seek a verdict of murder in the second degree, or manslaughter, as the evidence might warrant. The defendant entered a plea of not guilty.\nThe evidence discloses that in the Spring of 1947, the defendant was a taxicab driver in the Town of Mount Airy. He lived with his wife at the home of his mother-in-law on Elm Street.\nOn 29 April, 1947, at about 5 :45 p.m., the defendant\u2019s wife and her mother were in the kitchen of their home eating supper, when the defendant arrived. Tbe mother testified: \u201cWhen Gene came home Mary got up from the table and went to the door to meet him; . . . they went into their room where they stayed. I did not hear any conversation between them. They were in there four or five minutes and I heard a gun fire and she called me and I went in there and found her standing there in the floor and Gene ahold of her by the arm and his pistol in his hand pointing in the direction of her stomach.\u201d\nMary Childress was shot in the pit of the stomach, and died as a result of the gunshot wound without ever speaking or making any statement.\nThere is also evidence that about three days prior thereto, the defendant was heard to say to his wife: \u201cIf you don\u2019t do what I told you, by G-, I will kill you.\u201d\nThe defendant testified that he usually carried a pistol in his taxicab. On the occasion in question, \u201cafter I got out of the car I reached in and got the gun and carried it on in. . . . My wife met me at the door . . . threw her arms around me and kissed me; . . . that was the usual occurrence and greeting when I went home. ... We walked from the door to almost the foot of the bed . . ., she had her left arm around me, . . . and I started to pitch the gun on the bed and it went off. . . . She threw her arms up around my shouders at that time; I didn\u2019t think she was hit; she screamed and her mother came in the room.\u201d\nThe court instructed the jury that one of two verdicts might be returned on the evidence \u2014 guilty of murder in the second degree or not guilty.\nYerdict: Guilty of murder in the second degree.\nJudgment: Imprisonment in the State\u2019s Prison for not less than 17 nor more than 29 years.\nThe defendant appeals, assigning as principal error the failure of the court to submit to the jury the less degree of the crime charged, to wit, manslaughter.\nAttorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.,\nFolger & Folger and Woltz & Barber for defendant." }, "file_name": "0208-01", "first_page_order": 254, "last_page_order": 256 }