{ "id": 8572884, "name": "STATE v. ERNEST MEADOWS, Defendant", "name_abbreviation": "State v. Meadows", "decision_date": "1968-01-12", "docket_number": "", "first_page": "327", "last_page": "339", "citations": [ { "type": "official", "cite": "272 N.C. 327" } ], "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": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "opinion_index": -1, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "157 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567119 ], "opinion_index": 0, "case_paths": [ "/nc/271/0730-01" ] }, { "cite": "199 Kan. 472", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 60327 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/kan/199/0472-01" ] }, { "cite": "200 So. 2d 511", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 2589443 ], "opinion_index": 0, "case_paths": [ "/ala/281/0189-01" ] }, { "cite": "232 A. 2d 538", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "1 Md. App. 623", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2325818 ], "opinion_index": 0, "case_paths": [ "/md-app/1/0623-01" ] }, { "cite": "221 A. 2d 653", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "243 Md. 425", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1942739 ], "opinion_index": 0, "case_paths": [ "/md/243/0425-01" ] }, { "cite": "230 A. 2d 700", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "1 Md. App. 455", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2325904 ], "opinion_index": 0, "case_paths": [ "/md-app/1/0455-01" ] }, { "cite": "84 S. Ct. 1768", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "378 U.S. 478", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166688 ], "weight": 2, "pin_cites": [ { "page": "492" }, { "page": "986" } ], "opinion_index": 0, "case_paths": [ "/us/378/0478-01" ] }, { "cite": "89 A.L.R. 2d 478", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "pin_cites": [ { "page": "pp. 479-480" } ], "opinion_index": 0 }, { "cite": "10 A.L.R. 3d 974", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 }, { "cite": "121 S.E. 2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569469 ], "opinion_index": 0, "case_paths": [ "/nc/255/0358-01" ] }, { "cite": "173 La. 753", "category": "reporters:state", "reporter": "La.", "case_ids": [ 5428021, 10060711 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/la/173/0753-01", "/so/138/0656-01" ] }, { "cite": "42 So. 2d 693", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 5201471 ], "opinion_index": 0, "case_paths": [ "/ala/253/0041-01" ] }, { "cite": "149 S.W. 2d 93", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10218070 ], "opinion_index": 0, "case_paths": [ "/sw2d/149/0093-01" ] }, { "cite": "61 Idaho 456", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4386776 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/idaho/61/0456-01" ] }, { "cite": "85 Ariz. 213", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 646693 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/85/0213-01" ] }, { "cite": "14 L.R.A., N.S., 209", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "year": 1907, "opinion_index": 0 }, { "cite": "68 A. 184", "category": "reporters:state_regional", "reporter": "A.", "year": 1907, "opinion_index": 0 }, { "cite": "219 Pa. 204", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1002667 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/pa/219/0204-01" ] }, { "cite": "207 A. 2d 814", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1965, "opinion_index": 0 }, { "cite": "417 Pa. 368", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1893989 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/pa/417/0368-01" ] }, { "cite": "215 N.E. 2d 658", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "350 Mass. 491", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 526960 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/mass/350/0491-01" ] }, { "cite": "95 S.E. 2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602952 ], "opinion_index": 0, "case_paths": [ "/nc/245/0042-01" ] }, { "cite": "92 S.E. 2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627135 ], "opinion_index": 0, "case_paths": [ "/nc/243/0735-01" ] }, { "cite": "138 S.E. 138", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217870 ], "opinion_index": 0, "case_paths": [ "/nc/193/0747-01" ] }, { "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": "223 U.S. 442", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3663096 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/223/0442-01" ] }, { "cite": "135 S.E. 2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574609 ], "opinion_index": 0, "case_paths": [ "/nc/261/0558-01" ] }, { "cite": "128 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559589 ], "opinion_index": 0, "case_paths": [ "/nc/258/0089-01" ] }, { "cite": "70 S.E. 2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625125 ], "opinion_index": 0, "case_paths": [ "/nc/235/0410-01" ] }, { "cite": "155 S.E. 879", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N.C. 778", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615756 ], "opinion_index": 0, "case_paths": [ "/nc/199/0778-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 1254, "char_count": 32689, "ocr_confidence": 0.547, "pagerank": { "raw": 7.522284500596305e-07, "percentile": 0.9701791494407589 }, "sha256": "5083ae7afe0a41b9f287345c74f16a13547bd531ea6aa05f2b902baf99c2996b", "simhash": "1:a38400c2feb8b8d1", "word_count": 5478 }, "last_updated": "2023-07-14T21:31:35.058336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. ERNEST MEADOWS, Defendant." ], "opinions": [ { "text": "Bobbitt, J.\nDefendant assigns as error the overruling of his plea of \u201cformer conviction\u201d by Brock, J., at May 1966 Mixed Session.\nDefendant based his plea of \u201cformer conviction\u201d on the fact the indictment for felonious assault to which he pleaded guilty at May 1965 Session, and the indictment for murder returned at February 1966 Session and on which defendant was tried at the October-November 1966 Session, arose out of the same transaction, namely, the alleged shooting of Ellis Newman by defendant on February 5, 1965.\nDefendant pleaded guilty to the said crime of felonious assault and was sentenced therefor prior to May 31, 1965, the date of the death of Ellis Newman.\nAlthough identical in respect of certain elements, the crimes charged in the two bills of indictment are distinct offenses both in law and in fact.\nThe crime of felonious assault, created and defined by G.S. 14-32, consists of these essential elements: (1) An assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death. State v. Hefner, 199 N.C. 778, 155 S.E. 879; State v. Birchfield, 235 N.C. 410, 70 S.E. 2d 5; State v. Jones, 258 N.C. 89, 128 S.E. 2d 1.\nIn felonious assault, \u201c(t)he injury must be serious but it must fall short of causing death.\u201d State v. Jones, supra. Too, a specific intent to kill is an essential element of felonious assault. State v. Ferguson, 261 N.C. 558, 135 S.E. 2d 626.\nWith reference to the murder indictment, this statement by Mr. Justice Van Devanter in Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500, is apposite: \u201cThe death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.\u201d\nThe trial on said murder indictment was for second degree murder or manslaughter as the evidence might warrant. \u201cA 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 or manslaughter.\u201d State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322.\n\u201cIf, after a prosecution for an offense, a new fact supervenes for which the defendant is responsible, and which changes the character of the offense, and, together with the previous facts, constitutes a new and distinct crime, an acquittal or conviction of the first offense is no bar to an indictment for the other distinct crime.\u201d 1 Wharton\u2019s Criminal Law and Procedure, \u00a7 145, p. 353. Accord: 21 Am. Jur. 2d, Criminal Law \u00a7 186; 22 C.J.S., Criminal Law \u00a7 287c, p. 753.\nA plea of guilty is \u201cequivalent to a conviction.\u201d State v. Brinkley, 193 N.C. 747, 138 S.E. 138; Harrell v. Scheidt, Comr. of Motor Vehicles, 243 N.C. 735, 92 S.E. 2d 182; State v. Stone, 245 N.C. 42, 95 S.E. 2d 77.\nThe plea in bar asserted by defendant is autrefois convict, \u201cformerly convicted.\u201d Decision on this appeal relates exclusively to such plea. We do not consider or decide whether an acquittal of defendant after trial on the felonious assault bill of indictment would constitute a bar to the subsequent prosecution for homicide.\nIn Commonwealth v. Vanetzian, 350 Mass. 491, 215 N.E. 2d 658 (1966), a defendant, prior to the victim\u2019s death, was indicted for assault and battery by means of a dangerous weapon, and pleaded guilty to and was sentenced for this criminal offense. Subsequently, when placed on trial for murder, the defendant pleaded autrefois convict. In overruling defendant\u2019s said plea, the Supreme Judicial Court of Massachusetts, in opinion by Spalding, J., said: \u201cBoth the common law and our statutes provide that a person may not be twice put in jeopardy for the same offence. (Citations.) But it is clear that this principle can have no application where, as here, at the time of the first indictment the facts upon which the second indictment is based had not yet occurred. (Citations.)\u201d\nIn Commonwealth v. Maroney, 417 Pa. 368, 207 A. 2d 814 (1965), the defendant, prior to the victim\u2019s death, had pleaded nolo con-tendere to an indictment charging aggravated assault and robbery. Later he was indicted and adjudged guilty of murder in the first degree and sentenced to life imprisonment. In habeas corpus proceedings, he sought relief on the ground his plea of nolo contendere to aggravated assault and robbery constituted a bar to the subsequent prosecution for homicide. In rejecting defendant\u2019s plea of autrefois convict, the Supreme Court of Pennsylvania, in opinion by Eagen, J., said: \u201cIf, on the day he was convicted of aggravated assault and battery, the victim had already died and the appellant was then guilty of murder, his prosecution and conviction for the assault and battery would have barred his subsequent prosecution for murder. . . . However, when the first conviction occurred, the appellant was not then guilty of murder and could not have been prosecuted for that crime, since no such crime had as yet been committed. When the death occurred, a new and distinct crime was consummated for which he was not before guilty or prosecuted. The case of Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184, 14 L.R.A., N.S., 209 (1907), is factually identical and controlling.\u201d\nDecisions in accord include the following: State v. Wilson, 85 Ariz. 213, 335 P. 2d 613; State v. Randolph, 61 Idaho 456, 102 P. 2d 913; Hill v. State, 149 S.W. 2d 93 (Tex.); Powell v. State, 42 So. 2d 693 (Ala.); State v. Wheeler, 173 La. 753, 138 So. 656. No decision reaching a contrary result has come to our attention. Both reason and authority support Judge Brock\u2019s ruling in respect of defendant\u2019s said plea of \u201cformer conviction.\u201d\nDefendant also assigns as error the denial of his motion (s) for judgment as in case of nonsuit. Defendant having offered evidence, the only question is whether the court erred in the denial of the motion made by defendant at the close of all the evidence. G.S. 16-173; State v. Leggett, 255 N.C. 358, 121 S.E. 2d 533.\nThe State\u2019s evidence consists of the testimony of Elree Robinson, Elgee Gray, Ben Stewart, and Eugene F. Hamer.\nThe testimony of Dr. Hamer, a medical expert, relates solely to the injuries sustained by Newman on February 5, 1965, and the cause of his death on May 31, 1965. Dr. Hamer testified: \u201cThe cause of (Newman\u2019s) death on May 31, 1965, was from complications, indirectly as a result of the gunshot wound of the neck which caused total paralysis from the neck down. The wound was on his neck, on one side.\u201d\nRobinson testified in substance as follows: Robinson, \u201chalf-brother\u201d of defendant, drove his car to defendant\u2019s house on Friday, February 5, 1965, about 10:00 p.m., in order to try to crank defendant\u2019s car. Newman went with him. Robinson parked his car in defendant\u2019s yard in position to connect jumper cables to the batteries of the two cars. While they were trying, unsuccessfully, to crank defendant\u2019s car, Newman and defendant \u201chad some words about a hat.\u201d Newman told defendant he had better leave the car alone; that he could crank it the next day when they came home from work; and that defendant had been \u201cin some of that man\u2019s gin anyway\u201d and would not know what he was doing that night. Defendant then left, saying, \u201cWait a minute, I\u2019ll be right back.\u201d Defendant went into the house, came to the door with a shotgun, fired it once, the load from the gun hitting Newman in the neck. When shot, Newman was \u201cbeside the car,\u201d facing Robinson. Robinson asked defendant what was wrong. Defendant cursed and went back into the house. He came out again, without the shotgun, and said, \u201cThe damn rascal ain\u2019t dead?\u201d Robinson replied, \u201cNo, he\u2019s not dead.\u201d Robinson asked Newman whether he could help him. Newman said, \u201cNo,\u201d and \u201cslid back by the car with his head against the left wheel of (defendant\u2019s) car.\u201d The porch light at defendant\u2019s house was on. Newman did not have a knife in his hand. Robinson did not see Newman \u201chave a piece of iron or hammer.\u201d After the shooting, Robinson \u201cran over to (his) mother\u2019s and had her call an ambulance and the Police Department.\u201d Two police officers answered the call.\nGray and Stewart, police officers, testified in substance as follows: Upon arrival, they found Newman lying on the ground, leaning back against some old. tires and the front wheel of a car that was parked in the yard. Newman was shot in the neck. He was \u201cbleeding in the back of the neck where there was a wound.\u201d Newman \u201cwas talking but not moving any.\u201d Stewart, on cross-examination, testified: \u201cI remember seeing a hammer somewhere but not where Newman was. I think there were about three or four feet between the porch and the car. It seems to me there was a hammer on the porch.\u201d Gray, under cross-examination, testified: \u201cI did not see any hammer.\u201d\nDefendant\u2019s evidence consists of his own testimony. He testified in substance as follows: He had told Robinson, \u201c(his) brother,\u201d to come to his house Friday night, February 5, 1965, to help him start his car. Robinson got there about 10:30 p.m., accompanied by Newman. Defendant\u2019s car was \u201cabout three feet\u201d from his porch. Defendant took his tool box, went to his car, \u201ctook the hammer and pounded the wire on the post of the battery,\u201d and then \u201claid the hammer down on the fender of the car.\u201d Robinson was in his car, \u201cwith the lights on and the motor running.\u201d Newman switched on the motor of defendant\u2019s car. Whereupon defendant hollered, \u201cI ain\u2019t ready yet,\u201d and \u201cMan, are you crazy?\u201d The fan on the motor had cut defendant\u2019s wrist. Whereupon Newman cursed defendant and his car. Defendant told Newman to leave. Newman refused and said, \u201cI want to whip hell out of you anyhow.\u201d While Newman was cursing, abusing and threatening defendant, defendant went to his house and was standing in the door. The shotgun \u201cwas setting right beside of the door facing as you come in the door.\u201d Defendant got his shotgun with his left hand. Newman came up on defendant\u2019s doorstep. Defendant told him \u201cto go on.\u201d When Newman put his foot on the porch and drew the hammer back, defendant grabbed the shotgun and shot him. Defendant testified: \u201cWhen I come down with the gun, he was coming down with the hammer.\u201d He also testified: \u201cHe was coming on me in my house, and I was not able to do anything with a man like that in my condition and him with that hammer coming at me.\u201d Defendant testified that \u201c(a)bout seven months before (he) had two ribs removed and a lung operation,\u201d and that his back was broken in the service and he was still on crutches.\nThere was ample evidence to support a jury finding that defendant intentionally shot Newman with a deadly weapon, to wit, a shotgun, and thereby proximately caused Newman\u2019s death. Upon such finding, 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. Gordon, supra. This being so, defendant\u2019s motion for judgment as in case of non-suit was properly denied.\nAfter defendant had testified, the State recalled Gray and Stewart. Defendant assigns as error the admission of their testimony, upon recall, as to statements made by defendant at the scene of the shooting.\nTheir testimony tends to show that these officers had received a call that a shooting had occurred at 718 Boyce Street; that they proceeded to this address to investigate; that, upon arrival, they found Newman, shot \u201con the neck with a shotgun,\u201d bleeding, in defendant\u2019s yard; that \u201cthere were several persons around there,\u201d including defendant\u2019s \u201cbrother\u201d; and that defendant was there and talked with them.\nStewart testified he asked defendant what had happened, and that defendant replied, \u201cI shot him\u201d; that, when asked why, defendant stated he had told Newman to leave; and that when asked about the weapon, defendant and Gray went to the back bedroom of defendant\u2019s house and got the shotgun. In further conversation, according to Stewart, \u201cafter the ambulance come to take (Newman) away,\u201d defendant told Stewart that Newman \u201chad a knife on him \u2014 that he pulled a knife.\u201d Stewart testified he saw no knife.\nWhen defendant\u2019s counsel objected to testimony by Stewart as to what defendant told him, the court inquired of Stewart: \u201cWas (defendant) a suspect at that time?\u201d Stewart answered: \u201cI didn\u2019t know what happened. When I got there \u2014 I asked him what happened and that\u2019s when he told me.\u201d Thereupon, the court, apparently basing his ruling on his finding that defendant was not \u201ca suspect\u201d at that time, overruled defendant\u2019s objection and admitted the testimony of Stewart summarized above.\nGray, when asked by the court whether defendant was a suspect at the time of the investigation, answered, \u201cYes, sir.\u201d Defendant\u2019s objection to this question by the court was overruled and defendant excepted. Whereupon, the solicitor asked: \u201cWhat did you (Gray) say to him (defendant) ?\u201d No objection was interposed by defendant. Defendant answered: \u201cWhen I walked up to the house where Ernest was, Ernest said he shot \u2018Jum\u2019 on account of a hat he had borrowed.\u201d Defendant made no motion to strike this unresponsive answer.\nThe testimony of defendant that he shot Newman, and the testimony of Stewart, upon recall, that defendant advised him at the scene of the shooting that he had shot Newman, are in full accord. Statements attributed to defendant that Newman had had a knife and that he had shot Newman \u201con account of a hat he had borrowed\u201d are in conflict with defendant\u2019s testimony at trial. Hence, to whatever extent it may be considered prejudicial, the impact of this testimony bears upon defendant\u2019s credibility as a witness.\nPrior to the decision of the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974, the rule supported by the weight of authority was \u201cthat an involuntary or not properly qualified confession may not be used to impeach an accused person who takes the witness stand in his own behalf . . .\u201d Annotation, 89 A.L.R. 2d 478, pp. 479-480. Under Miranda, it seems clear an involuntary or not properly qualified confession or admission may not be used as evidence for any purpose.\nOrdinarily, the failure of defendant\u2019s counsel to move to strike Gray\u2019s unresponsive answer would be sufficient to dispose of defendant\u2019s assignment of error (unsupported by an exception) with reference thereto. However, we prefer to consider the challenged evidence on the merits rather than on procedural grounds.\nThere is no contention that defendant was warned as to any of the constitutional rights set forth in Miranda prior to making the statements attributed to him. The question is whether, under the circumstances, such warning was necessary.\nIn Miranda, the majority opinion, delivered by Mr. Chief Justice Warren, states that the constitutional issue decided \u201cis the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way.\u201d Repeatedly, reference is made to \u201ccustodial interrogation.\u201d Thus, the opinion states: \u201c(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.\u201d The opinion stated further: \u201cOur decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois, 378 U.S. 478, 492, 12 L. Ed. 2d 977, 986, 84 S. Ct. 1768. . . . Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.\u201d The opinion also states: \u201cVolunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by our holding today.\u201d\nAs stated in Gaudio v. State, 1 Md. App. 455, 230 A. 2d 700: \u201cIn the opinion (in Miranda) the Court discussed \u2018custodial interrogation\u2019 at great length and the dangers against which the specific procedural safeguards are a shield were more definitively set forth in the discussion explaining the meaning above stated. The four cases decided by Miranda shared salient features, among which was \u2018incommunicado interrogation of individuals in a police-dominated atmosphere.\u2019 The Court referred to the Wickersham Report in the early 1930\u2019s and to the \u2018third degree\u2019 which flourished at that time and to cases thereafter decided by the Court in which police resorted to \u2018physical brutality \u2014 beatings, hanging, whipping \u2014 and to sustained and protracted questioning incommunicado in order to extort confessions.\u2019 It found that the use of physical brutality and violence is not relegated to the past or to any part of the country and stated that, \u2018Unless a proper limitation upon custodial interrogation is achieved \u2014 such as these decisions will advance \u2014 there can be no assurance that practices of this nature will be eradicated in the foreseeable future.\u2019 It stressed that the modern practice of in-custody interrogation is psychologically rather than physically oriented so that coercion can be mental as well as physical. It referred to police manuals and texts in which police officers are told that the \u2018principal psychological factor contributing to a successful interrogation is privacy \u2014 being alone with the person under interrogation.\u2019 \u201d\n\u201cIn-custody interrogation\u201d is not involved in the factual situation here considered. Defendant was at his own home. He was living with his wife, his three children and his wife\u2019s mother. Robinson, his brother or half-brother, was present. Newman was lying in his yard. Others, presumably neighbors, had gathered at the scene of the shooting.\nDefendant was not under arrest or in custody when the statements attributed to him were made. As to whether defendant was then a \u201csuspect,\u201d the only reasonable conclusion to be drawn from the evidence is that defendant was then suspected, indeed it was manifest, that he, on his own premises, had shot Newman. The officers were seeking information as to the circumstances to determine whether and, if so, by whom, a crime had been committed. Whether they would conclude a crime had been committed depended upon the results of their investigation. Defendant was not taken into custody until after the officers had completed their investigation.\nA general investigation by police officers, when called to the scene of a shooting, automobile collision, or other occurrence calling for police investigation, including the questioning of those present, is a far cry from the \u201cin-custody interrogation\u201d condemned in Miranda. Here, nothing occurred that could be considered an \u201cincommunicado interrogation of individuals in a police-dominated atmosphere.\u201d Defendant\u2019s assignment of error with reference to the testimony of the officers as to statements made by defendant at the scene of the shooting is without merit.\nThe views expressed herein are in accord with those stated in the following cases: Duffy v. State, 243 Md. 425, 221 A. 2d 653; Gaudio v. State, supra; Dixon v. State, 1 Md. App. 623, 232 A. 2d 538; Ison v. State, 200 So. 2d 511 (Ala.); State v. Phinis, 199 Kan. 472, 430 P. 2d 251.\nIn Ison v. State, supra, police officers stopped behind a car and found therein a person who was slumped over and had been shot in the head. One of the officers attended the wounded man while the other contacted police headquarters over the police car radio. The officer attending the wounded man testified that defendant approached with a pistol in his hand and in response to a question as to whether he had done the shooting made the inculpatory statement that he had shot the deceased. The Court, in opinion by Har-wood, J., said: \u201cWe can conceive of no set of circumstances where it could be more unlikely that a statement by a person was coerced, than in the present situation where that person left his home, approached an investigating officer, and while standing in his own yard with a pistol in his hand, and not yet even in custody, replied to a question by the officer then engaged in ministering to a wounded man, as to whether he had shot the victim.\u201d\nIn State v. Phinis, supra, the sheriff, in response to a call, went to a service station and talked with one Hill who had been injured. The sheriff took Hill to a medical center for treatment of his injury, apparently a gunshot wound. Thereafter the sheriff and a patrolman went to a cabin occupied by the defendant and three others. During general questioning by the officers, in the course of their investigation, defendant stated she had fired a shot into the floor to scare Hill, who had been drinking and refused to leave, but that the bullet did not hit Hill. After their general investigation, the officers took defendant and one of the other occupants to the police station. With reference to testimony as to statements made by defendant during the general investigation at the cabin, the Court said: \u201cAt that stage of the investigatory process the general inquiry was of a nature and for the purpose of determining if a crime had been committed upon the person of Eddy Hill who claimed he had been shot by someone in the cabin. The nature of the crime had not been determined and the inquiry into such had not focused on any particular suspect. Clearly the investigation was not the custodial interrogation referred to in Escobedo and Miranda. The surroundings or place of the investigation, the circumstances giving rise to the inquiry and the presence of friends of the defendant indicate it was an \u2018on-the-seene\u2019 investigation. No advice of rights was required at that step of the investigation. The officers were not certain a crime had been committed by anyone.\u201d\nFor a comprehensive discussion of the impact of Miranda on police practices, see article by Thomas C. Lynch, Attorney General of the State of California, 35 Fordham Law Eeview 221 et seq.\nThe judgment for felonious assault pronounced at said May 1965 Session, which imposed a prison sentence of five years, is authorized by G.S. 14-32; and the judgment for manslaughter pronounced at said October-November 1966 Session, which imposed a prison sentence of not less than twelve nor more than fifteen years, is authorized by G.S. 14-18. Each judgment is complete within itself; and, there being no order to the contrary, the two sentences run concurrently. State v. Efird, 271 N.C. 730, 157 S.E. 2d 538, and cases cited. However, defendant had served a portion of the sentence imposed in the felonious assault case prior to pronouncement of judgment in the manslaughter case. This question arises: Is defendant entitled to credit for the time served during this period in computing the length of the sentence he is required to serve in the manslaughter case?\nWe are confronted with this anomalous situation. In the felonious assault case, it is established that the shooting of Newman by defendant did not result in Newman\u2019s death; but in the manslaughter case, it is determined that the very same shooting of Newman by defendant did cause Newman\u2019s death. The situation is one of rare occurrence. Under the circumstances, this Court, in the exercise of its \u201cgeneral supervision and control over the proceedings of the other courts,\u201d conferred by Article IY, Section 10, of the Constitution of North Carolina, holds that defendant should be given credit for the time so served in computing the length of his imprisonment on the manslaughter sentence. Hence, the judgment of the court below is so modified; and it is directed that an order be entered in the superior court referring to said modification by this Court of the judgment pronounced at October-November 1966 Session and ordering that a modified commitment be issued in' the manslaughter case in accordance therewith.\nWe find no error in the trial below. However, the judgment is modified as stated herein.\nNo error in trial \u2014 judgment, as modified, affirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Bruton, Assistant Attorney General McDaniel and Staff Attorneys Jacobs and Wood for the State.", "B. Roy Hawfield for defendant appellant." ], "corrections": "", "head_matter": "STATE v. ERNEST MEADOWS, Defendant.\n(Filed 12 January, 1968.)\n1. Assault and Battery \u00a7 S\u2014\nThe offense of felonious assault under G.S. 14-32 consists of an assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death.\n2. Homicide \u00a7 1\u2014\nAn accused may not be placed in jeopardy for homicide until the death of the injured victim has occurred.\n3. Homicide \u00a7\u00a7 4, 5\u2014\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 murder in the second degree or manslaughter.\n4. Criminal Law \u00a7 23\u2014\nA plea of guilty is equivalent to a conviction.\n5. Criminal Law \u00a7 26\u2014\nIf, after a prosecution for an offense, a new fact supervenes for which the defendant is responsible and which changes the character of the offense and, together with the previous facts, constitutes a new and distinct crime, a conviction of the first offense is no bar to an indictment for the other distinct crime.\n6. Criminal Law \u00a7 26; Homicide \u00a7\u00a7 1, 12\u2014\nDefendant, prior to his victim\u2019s death, pleaded guilty to an indictment charging a felonious assault, G.S. 14-32, and was sentenced therefor. Subsequently, upon the victim\u2019s death, defendant was indicted for murder in the second degree, and defendant entered a plea of autrefois cowviet to the charge. Held: Defendant\u2019s plea in bar of \u201cformer conviction\u201d was properly overruled, since at the time of his conviction for felonious assault the defendant could not have been placed in jeopardy for homicide.\n7. Criminal Law \u00a7 176\u2014\nWhere defendant introduces evidence, only the correctness of the denial of the motion to nonsuit made at the close of all the evidence is presented on appeal.\n8. Homicide \u00a7 20\u2014\nEvidence of the State tending to show that the defendant and the deceased had a quarrel in the defendant\u2019s yard, that the defendant got a shotgun from his house and fired at the unarmed deceased, wounding him in the neck, resulting in his death some four and one-half months later, held sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of murder in the second degree or of manslaughter.\n9. Homicide \u00a7 13\u2014\nWhen the evidence of the State amply supports a jury finding that the defendant intentionally shot the deceased with a deadly weapon and thereby proximately caused his death, the presumptions arise that the killing was unlawful and with malice, constituting the offense of murder in the second degree.\n10. Criminal Law \u00a7\u00a7 75, 86\u2014\nUnder the decision of Miranda v. Arizona, 384 U.S. 436, it is clear that an involuntary or not properly qualified confession may not be used to impeach a defendant who takes the stand in his own behalf.\n11. Same\u2014\nEvidence of the State that the defendant, surrounded by family and friends in his yard, made inculpatory statements, amounts to a confession to police officers immediately following the shooting of the deceased by defendant, held properly admitted in evidence to impeach the testimony of defendant on trial, although the officers failed to advise de-fenclant of Ms rights as required by Miranda, v. Arizona, it appearing that the statements were the result of a general police investigation to determine if a crime had been committed, and not the result of an in-custody interrogation.\n13. Assault and Battery \u00a7 17\u2014\nA judgment imposing a prison sentence of five years upon a conviction of felonious assault is authorized by G.S. 14-32.\n13. Homicide \u00a7 30\u2014\nA judgment imposing a prison sentence of not less than 12 nor more than 15 years upon conviction of manslaughter is authorized by G.S. 14-18.\n14. Criminal Haw \u00a7 140\u2014\nWhere the court enters separate judgments imposing sentences of imprisonment and each judgment is complete within itself, the sentences run concurrently as a matter of law in the absence of a provision to the contrary in the judgment.\n15. Criminal haw \u00a7\u00a7 138, 146\u2014\nDefendant pleaded guilty to a charge of felonious assault and began a sentence of five years imprisonment. Upon the death of the victim of the assault, defendant was convicted of manslaughter and sentenced to a period of imprisonment for not less than 12 nor more than 15 years, the sentence to run concurrently with the first. Held: The Supreme Court, in the exercise of its general supervisory jurisdiction, North Carolina Constitution Art. IV, \u00a7 10, orders that the defendant be given credit for the time served under the first sentence of imprisonment in computing the length of imprisonment in the judgment for manslaughter.\nAppeal by defendant from McLaughlin, J., October-November 1966 Session of Union.\nAt February 1966 Session, the grand jury of Union County returned a bill of indictment charging that defendant on February 5, 1965, murdered one Ellis Newman. At February 1966 Session, Gam-bill, J., appointed Koy E. Dawkins, Esq., of the Union County Bar, to represent defendant in respect of said murder indictment. At May 1966 Session, Mr. Dawkins, representing defendant, before entering any other plea, entered a plea of \u201cformer conviction\u201d to said murder indictment and filed a brief in support of this plea. Thereafter, by order of Brock, J., dated May 4, 1966, the court, being advised that \u201cthe family\u201d of defendant had retained other counsel to represent him, permitted Mr. Dawkins to withdraw from the case. Defendant\u2019s said plea of \u201cformer conviction\u201d was heard by Brock, J., at said May 1966 Session. His order overruling defendant\u2019s plea of \u201cformer conviction\u201d is based on the findings of fact set forth therein, to wit:\n\u201cThat on February 5, 1965, during an altercation in the home of the defendant, the deceased, Ellis 'June\u2019 Newman, was allegedly shot with a shotgun by the defendant; that a warrant was issued and a Bill of Indictment returned at the May 1965 Session charging the defendant with a felonious assault on Ellis \u2018June\u2019 Newman with a deadly weapon, to wit, a 12 gauge shotgun, with intent to kill Ellis \u2018June\u2019 Newman, inflicting serious bodily injury not resulting in death; that at the May 1965 Session the defendant, through counsel, entered a plea of guilty as charged and was sentenced by the presiding Judge to a term of five (5) years in the State Prison; that thereafter on the 31st day of May, 1965, Ellis \u2018June\u2019 Newman died allegedly as a result of the gunshot wound received on February 5, 1965; that at the February 1966 Session of Superior Court of Union County the Grand Jury returned a true bill charging the defendant with the murder of Ellis \u2018June\u2019 Newman, and the case was set for trial at the May 2, 1966, Session.\u201d\nDefendant excepted generally \u201c(t)o the foregoing findings of fact, conclusions of law and entry of the foregoing order denying defendant\u2019s plea in bar . . .\u201d\nAfter the entry of Judge Brock\u2019s order, and by and with the consent of the solicitor, trial of defendant on said murder indictment was continued for the session.\nTrial on said murder indictment was before McLaughlin, J., and a jury, at said October-November 1966 Session. Defendant was represented by Byron E. Williams, Esq., privately retained counsel. The jury returned a verdict of guilty of manslaughter. Thereupon, the court pronounced judgment imposing a prison sentence of not less than twelve nor more than fifteen years. Defendant excepted and gave notice of appeal.\nOrders entered by McConnell, Resident Judge, in July and August, 1967, provide: (1) Failure to perfect the appeal in apt time was \u201cthrough no fault or neglect on the part of the indigent defendant,\u201d and defendant was allowed to perfect his appeal; (2) R. Roy Hawfield, Esq., a member of the Union County Bar, was appointed counsel for defendant, an indigent, to perfect the belated appeal; and (3) Union County was required to pay the costs of mimeographing the record and defendant\u2019s brief incident to his appeal.\nAttorney General Bruton, Assistant Attorney General McDaniel and Staff Attorneys Jacobs and Wood for the State.\nB. Roy Hawfield for defendant appellant." }, "file_name": "0327-01", "first_page_order": 363, "last_page_order": 375 }