{ "id": 8565233, "name": "STATE v. JAMES ALFORD PRICE", "name_abbreviation": "State v. Price", "decision_date": "1967-10-11", "docket_number": "", "first_page": "521", "last_page": "527", "citations": [ { "type": "official", "cite": "271 N.C. 521" } ], "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": "150 S.E. 2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561247 ], "opinion_index": 0, "case_paths": [ "/nc/268/0267-01" ] }, { "cite": "85 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "142 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "264 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574153 ], "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0508-01" ] }, { "cite": "116 S.E. 2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622143 ], "opinion_index": 0, "case_paths": [ "/nc/253/0050-01" ] }, { "cite": "107 S.E. 2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 637", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620349 ], "opinion_index": 0, "case_paths": [ "/nc/249/0637-01" ] }, { "cite": "85 S.E. 2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614001 ], "opinion_index": 0, "case_paths": [ "/nc/241/0559-01" ] }, { "cite": "85 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "241 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610424 ], "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0356-01" ] }, { "cite": "85 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610947 ], "opinion_index": 0, "case_paths": [ "/nc/241/0382-01" ] } ], "analysis": { "cardinality": 703, "char_count": 13714, "ocr_confidence": 0.565, "pagerank": { "raw": 2.6244292072088917e-07, "percentile": 0.8216311066784202 }, "sha256": "d46347bf7b42e80d3eb3bebf3c2b1e3413549a10960b3f17053e618d1948e633", "simhash": "1:2bb944c7e58df0c8", "word_count": 2334 }, "last_updated": "2023-07-14T20:46:10.850261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. JAMES ALFORD PRICE." ], "opinions": [ { "text": "Bobbitt, J.\nDefendant\u2019s wife, while testifying in behalf of her husband, was asked on direct examination the following question: \u201cDo you know your father\u2019s reputation for the use of violence, particularly when he was under the influence of alcoholic beverages?\u201d The State objected, the court sustained the objection and defendant excepted to the court\u2019s ruling. Defendant\u2019s assignment of error based on this exception is without merit. Since the record does not show what the witness would have testified if permitted to answer, it cannot be determined whether the ruling was prejudicial. State v. Poolos, 241 N.C. 382, 85 S.E. 2d 342. It is noted that the court admitted evidence that Wright had a general reputation for violence while drinking and evidence of Wright\u2019s specific acts of violence toward defendant while drinking.\nDefendant excepted to and assigns as error excerpts from the charge relating to what must be established to raise the presumptions that the killing was unlawful and with malice. It is well established that these presumptions arise \u201cwhen the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted.\u201d State v. Gordon, 241 N.C. 356, 358, 85 S.E. 2d 322, 323, and cases cited; State v. Adams, 241 N.C. 559, 85 S.E. 2d 918; State v. Wagoner, 249 N.C. 637, 107 S.E. 2d 83; State v. Revis, 253 N.C. 50, 116 S.E. 2d 171; State v. Phillips, 264 N.C. 508, 515, 142 S.E. 2d 337, 340. When considered in the light most favorable to the State, there was plenary evidence tending to show defendant intentionally shot Wright and thereby proximately caused Wright\u2019s death. Error, if any, in the court\u2019s instructions on this feature of the case was in favor of and not prejudicial to defendant.\nDefendant excepted to and assigns as error portions of the charge relating to defendant\u2019s rights when acting in his own defense and in defense of his home and family. Careful consideration of the court\u2019s instructions on this feature of the case does not disclose prejudicial error. These instructions are in substantial accord with numerous decisions of this Court.\nDefendant\u2019s more serious exceptions and assignments of error relate to portions of the charge as given bearing upon whether the actual shooting of Wright was of an accidental nature and upon whether the court failed to charge fully \u201con the issue of accidental death and the possibility of a verdict of involuntary manslaughter.\u201d\nThe court instructed the jury in substance as follows: If the jury found the actual shooting of Wright was not intended by defendant but was accidental, this fact was for consideration in determining whether defendant used excessive force under the circumstances in defense of himself and of his home and family.\nDefendant contends the jury should have been instructed to return a verdict of not guilty if they found defendant did not intend that the bullet discharged from the pistol he fired would actually strike Wright; and that it was error to limit the significance of such fact to consideration in determining whether defendant used excessive force in defense of himself and of his home and family. This contention is untenable.\nDefendant contends, and rightly so, that in an appropriate factual situation, a defendant, under his plea of not guilty, may rely on more than one defense, e.g., (1) that he acted in self-defense, and (2) that the shooting was accidental. Appropriate circumstances for the assertion of these defenses were present in State v. Wagoner, supra, where the evidence as to accidental shooting tended to show that the pistol was not intentionally fired but discharged accidentally.\nHere, there is no evidential basis for a contention that the firing of the pistol was unintentional. The accident here, according to defendant\u2019s contention, is that defendant did not intend that any bullet from the intentionally fired pistol would actually strike Wright. The evidence most favorable to defendant tends to show it was his intention that the third bullet, as well as the prior two bullets, would strike in the area where Wright was standing and sufficiently close to him to put him in fear.\nIt is well established \u201cthat no man by the show of violence has the right to put another in fear and thereby force him to leave a place where he has the right to be.\u201d State v. Martin, 85 N.C. 509; State v. Douglas, 268 N.C. 267, 150 S.E. 2d 412. Here, on his own testimony, defendant assaulted Wright with a deadly weapon, thereby proximately causing Wright\u2019s death, and therefore was guilty of manslaughter, at least, unless he fired the pistol under such circumstances that the firing of the pistol was or reasonably appeared to be necessary in his own defense or in defense of his home or family. This was a matter for determination by the jury in the light of all circumstances disclosed by the evidence.\nDefendant\u2019s guilt or innocence depended upon whether he acted Within the limits of his legal right to defend himself, his home and his family. This conclusion is in accord with the court\u2019s instructions. Moreover, the court did not err by failing to instruct the jury with reference to involuntary manslaughter. There was no evidential basis for such instruction.\nThe record reveals another family tragedy. Apparently, Wright, when he was sober, enjoyed a cordial relationship with other members of the family, including defendant. However, when he was finder the influence of intoxicants, it would seem that he became abusive, rowdy and combative. The jury seems to have evaluated the evidence properly, namely, by deciding that defendant under all the circumstances, notwithstanding his patience may have been exhausted, used more force than was or reasonably appeared to be necessary to defend and protect himself, his home and his family. The verdict of guilty of manslaughter and the judgment pronounced thereon will not be disturbed.\nNo error.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Bruton and Assistant Attorney General Rich for the State.", "E. Glenn Scott for defendant appellant." ], "corrections": "", "head_matter": "STATE v. JAMES ALFORD PRICE.\n(Filed 11 October, 1967.)\n1. Criminal Law \u00a7 169\u2014\nExceptions to tbe exclusion of evidence cannot be sustained when tbe record fails to show what the witness would have testified if permitted to answer.\n2. Homicide \u00a7 13\u2014\nWhere the evidence establishes that the defendant intentionally assaulted another with a deadly weapon and thereby caused the death of the person assaulted, the presumption arises that the hilling was unlawful and with malice.\n3. Homicide \u00a7 23\u2014\nInstructions as to the presumptions arising from the intentional use of a deadly weapon held, without error in this case.\n4. Homicide \u00a7 27\u2014\nThe court\u2019s charge relating to self-defense and defense of home and family held free of prejudicial error in this case.\n5. Homicide \u00a7 12; Criminal Haw \u00a7 24\u2014\nUnder the general plea of not guilty, a defendant may rely upon more than one defense.\n0. Homicide \u00a7 27\u2014\nDefendant's testimony was to the effect that he intentionally fired three shots in the immediate area where the deceased was standing in order to warn him away from defendant\u2019s premises, and that the deceased was killed by the third shot. Held: Defendant\u2019s evidence does not present the defense of death by accident, since it discloses that he intentionally assaulted the deceased with a deadly weapon, and it was not error for the court to fail to charge the jury upon the defense of death by accident.\n7. Homicide \u00a7 26\u2014\nIn this homicide prosecution the failure to charge the jury with reference to involuntary manslaughter was not error, since there was no evidence to support such instruction.\nAppeal by defendant from Peel, J., March 13, 1967 Schedule \u201cC\u201d Criminal Session of MecKLENburg.\nCriminal pros\u00e9eution on indictment charging that defendant, on November 26, 1966, \u201cdid unlawfully, wilfully, feloniously but without premeditation and deliberation kill and murder Walter Junior Wright,\u201d etc. >\nEvidence was offered by the State and by defendant.\nThe evidence, summarized except when quoted, tends to show the facts narrated below.\nOn November 26, 1966, defendant, standing on the porch of his trailer, fired a .38 caliber Smith and Wesson pistol three times. The third shot struck and fatally injured Wright, striking him \u201cin the bridge of the nose, just slightly over to the side.\u201d Wright, defendant\u2019s father-in-law, when killed, was \u201cin the front yard of the (defendant\u2019s) trailer ... 42 feet from the front door of the trailer and approximately 33 feet from the edge of Skycrest Drive.\u201d When he fired the pistol, defendant was standing \u201chalfway out on the 4 ft. wide porch.\u201d\nBoth Wright and defendant resided in the same trailer park, which was located off Highway 115, North, in Mecklenburg County. The trailer in which Wright, Wright\u2019s wife, and also Maxine Price, the fifteen-year-old daughter of defendant, resided, was across Sky-crest Drive from the trailer in which defendant, his wife and other members of their family resided.\nWright was fifty-eight years of age. He had been disabled since 1961 and was constantly under a doctor\u2019s care. On November 26, \u25a01966, and prior thereto he was unemployed. Defendant was forty-seven years of age, weighed 190 pounds, and was taller than Wright.\nOn November 26, 1966, about 1:00 p.m., Wright went upon the premises and into the trailer of defendant. There was evidence tending to show he had been drinking (wine) heavily. While in defendant\u2019s trailer on this occasion, Wright approached both defendant and Roger Charles, a Sergeant in the U. S. Armed Forces and son-in-law of defendant, cursing them and threatening to strike them with a pop bottle and with a knife. Defendant\u2019s wife fainted. Defendant told Wright he wanted no trouble with him, told him to leave and not come back. Wright left and returned to his trailer.\nWright and his wife and Maxine Price had been caring for the eighteen months old child of Brenda Price, a daughter of defendant, while Brenda worked as a waitress. About 3:30 or 4:00 p.m., Brenda went to the Wright trailer to get her child. Wright told Brenda, speaking of defendant and of Charles: \u201cBoth of them were chicken. Neither of them would fight me.\u201d Wright, apparently resenting the fact that Brenda had taken the child, threw the articles of clothing belonging to the baby out into the yard. These were picked up by Maxine, put in a box and taken to Brenda. Shortly thereafter Wright left his trailer and crossed Skycrest Drive. Charles, who was in the Price trailer, testified: \u201cMr. Wright proceeded to come in the yard and Mr. Price got the pistol and says: T will scare him away.\u2019 I said: 'Don\u2019t shoot him.\u2019 He said, T won\u2019t.\u2019 \u201d\nDefendant testified: \u201cI got the gun and said, 'I can\u2019t have him back over here today,\u2019 and pushed the front door open. My daughter asked me not to let him come in. He started across a little valley and I said, \u2018Mr. Wright, I told you not to come back.\u2019 He said, \u2018Damn your soul, I\u2019m coming after you now.\u2019 I said, \u2018No, go back.\u2019 He said, \u2018I\u2019m going to get you.\u2019 He had his right hand in his right rear pocket and I shot at the ground. He kept coming saying, \u2018You s. o. b., you are not going to shoot nobody. You ain\u2019t got the nerve as I have.\u2019 I shot again and the baby ran out and grabbed both my legs. As I raised my gun to shoot again at his feet my daughter grabbed the baby: As she snatched, the gun was fired and I looked and he was backing up. He stumbled back 3 or 4 steps, then stopped, shook his head and said, 'Damn you,\u2019 and fell. I turned around to walk inside to call an ambulance.\u201d\nJeannette (Mrs. Charles), daughter of defendant, testified: \u201cMy father was in the living room when I saw my grandfather come out of his driveway. I was afraid of him because he hit me Thanksgiving day. I hadn\u2019t done anything and was pregnant. My father got a gun and went to the door and said, \u2018Jeannette, I\u2019m not going to shoot. I\u2019m just going to scare him away.\u2019 I heard my father tell my grandfather, \u2018Walter, don\u2019t come any closer. I told you not to come back over here,\u2019 and my grandfather said, \u2018I\u2019m going to get you anyway.\u2019 My little girl ran between my daddy\u2019s legs crying. My father used the pistol that\u2019s been introduced in evidence and fired it 3 times \u2014 I saw the first two hit the ground, because the dirt threw up. The third one hit him fired while I was standing behind daddy attempting to get my little girl. She was right between his legs holding on to him.\u201d\nDefendant testified: \u201cYou could say I was in the doorway when it happened. I was not aiming the gun and he could see the gun and heard the shots. When my daughter grabbed the girl it could have pulled me in the air.\u201d\nDefendant testified to prior threats and assaults made upon him by Wright when Wright was drinking and also to Wright\u2019s general reputation for violence when drinking. Defendant testified: \u201cI had known Mr. Wright about 23 years. When he was drinking, he was bad, a different person altogether, he would cut or slap you. When he wasn\u2019t drinking he was all right. He has served time for cutting a man and has cut me. He shot at me before. I was afraid of him and was protecting my family on that day.\u201d\nNo weapon was found on Wright\u2019s body except a closed pocketknife recovered from his \u201cleft rear pocket underneath a handkerchief.\u201d\nDefendant testified: \u201cI don\u2019t know the interval between the shots but there was a pause for conversation- \u2014 -not bang, bang, bang.\u201d Testimony of other witnesses tended to show three shots were fired in quick succession.\nThe jury returned a verdict of guilty of manslaughter. Judgment, imposing a prison sentence of not less than nine nor more than ten years was pronounced. Defendant excepted and appealed.\nAttorney General Bruton and Assistant Attorney General Rich for the State.\nE. Glenn Scott for defendant appellant." }, "file_name": "0521-01", "first_page_order": 555, "last_page_order": 561 }