{
  "id": 8572516,
  "name": "STATE OF NORTH CAROLINA v. THEODORE HENRY FRANKUM",
  "name_abbreviation": "State v. Frankum",
  "decision_date": "1967-12-13",
  "docket_number": "",
  "first_page": "253",
  "last_page": "255",
  "citations": [
    {
      "type": "official",
      "cite": "272 N.C. 253"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "154 S.E. 2d 907",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "270 N.C. 788",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8571240
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      "opinion_index": 0,
      "case_paths": [
        "/nc/270/0788-01"
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    {
      "cite": "102 S.E. 2d 521",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "248 N.C. 86",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8619916
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      "opinion_index": 0,
      "case_paths": [
        "/nc/248/0086-01"
      ]
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  "last_updated": "2023-07-14T21:31:35.058336+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE OF NORTH CAROLINA v. THEODORE HENRY FRANKUM."
    ],
    "opinions": [
      {
        "text": "Pless, J.\nThe defendant\u2019s own testimony as shown in the statement of facts would justify a peremptory instruction of guilt. But in addition, he \u201ccorroborated\u201d it by repeating on cross examination that \u201c[h]e [Miller] was standing in the front room when he turned back and said \u2018You G.d. black s.o.b., why don\u2019t you shoot me?\u2019 And so I did. ... I got up off the bed to shoot him. . . . No, sir, wasn\u2019t hurting a soul. ... I didn\u2019t see no knife. ... I wasn\u2019t scared. I just shot him because he come down there raising hell.\u201d The lady who \u201ckeeps house\u201d for the defendant also testified that when Miller asked Frankum why he didn\u2019t shoot him that Frankum said, \u201cI will\u201d and shot him, and the defendant was not in any great fear or harm at the time.\nThe defendant\u2019s' motion to dismiss has no merit as shown by the quoted portions of his own evidence. Other exceptions relating to the admission of evidence are without merit.\nThe defendant excepts to the Court\u2019s charge regarding an aggressor in the home of another and an instruction about a felonious assault. The defendant has shown only that Miller was obnoxious, but unarmed and making no assault when shot. \u201c[N]o words, however violent or insulting, justify a blow.\u201d Goldberg v. Ins. Co., 248 N.C. 86, 102 S.E. 2d 521. Because the jury did not convict of the felonious assault, any incorrect instruction relating thereto would not constitute error. State v. McCaskill, 270 N.C. 788, 154 S.E. 2d 907.\nAs stated above, the defendant was guilty of an assault with a deadly weapon, at least, upon his own statement. The Court was kind enough to the defendant to give him a chance before the jury that he did not deserve. He has no valid complaint.\nNo error.",
        "type": "majority",
        "author": "Pless, J."
      }
    ],
    "attorneys": [
      "Donald E. Bamseur, Attorney for defendant appellant.",
      "T. W. Bruton, Attorney General, and Millard B. Bich, Jr., Assistant Attorney General, for the State."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THEODORE HENRY FRANKUM.\n(Filed 13 December, 1967.)\n1. Assault and Battery \u00a7 14\u2014\nEvidence tending to show that the defendant shot the prosecuting wit- \u25a0 ness in the leg as he was walking away, unarnied, from the defendant\u2019s house, held sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of assault with a deadly weapon with intent to kill resulting in serious injury, and especially so when defendant\u2019s own testimony revealed that he saw no weapon and was not in fear of harm at the time.\n2. Criminal Law \u00a7 164\u2014\nWhere the jury convicts defendant of a lesser degree of the crime charged, any error relating solely to a higher degree of the offense cannot be prejudicial.\nAppeal by defendant from McLean, J., 24 July 1967 Criminal Session, GastoN County Superior Court.\nThe defendant was charged with a felonious assault on Lawrence Miller on 3 April 1967 by shooting him in the right leg with a .22 rifle. The defendant entered a plea of not guilty.\nThe evidence for the State tended to show that Frankum and Miller lived beside each other; that Miller went to the defendant\u2019s house on the night in question looking for his \u201chousekeeper.\u201d He found a drinking party going on; and upon being told that his lady friend was not there, he walked away. He got to his own lot when he was shot in the leg. After that, he heard the defendant tell \u201cthat woman that keeps house for him . . . \u2018I\u2019m going to shoot the s.o.b.\u2019 \u201d Miller said he had no gun or weapon when he was shot and that he lost five weeks from his work.\nThe defendant testified that Miller came to his house \u201cpretty well drunk,\u201d hit his guest Walt Brady, and knocked blood out of his mouth; that he (the defendant) asked him to leave, and Miller turned around and said, \u201c \u2018You G.d. black s.o.b., why don\u2019t you shoot me?\u2019 I said, T will.\u2019 \u201d That Miller was in the front room of the defendant\u2019s house when shot; \u201c[h]e opened the door and . . . crawled down the road and somebody picked him up . . . and took him to the hospital.\u201d\nThe jury returned a verdict of guilty of assault with a deadly weapon. Judgment of eighteen months\u2019 imprisonment (to run concurrently with the suspended sentence involved in State v. Frankum, post, p. 255) was pronounced, and the defendant appealed.\nDonald E. Bamseur, Attorney for defendant appellant.\nT. W. Bruton, Attorney General, and Millard B. Bich, Jr., Assistant Attorney General, for the State."
  },
  "file_name": "0253-01",
  "first_page_order": 289,
  "last_page_order": 291
}