{ "id": 8558305, "name": "STATE OF NORTH CAROLINA v. SAMUEL NICK MOORE", "name_abbreviation": "State v. Moore", "decision_date": "1969-04-09", "docket_number": "No. 4", "first_page": "198", "last_page": "214", "citations": [ { "type": "official", "cite": "275 N.C. 198" } ], "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": "368 U.S. 851", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6239458, 6239078, 6237688, 6238379, 6238738, 6236789, 6238037, 6237080 ], "opinion_index": 0, "case_paths": [ "/us/368/0851-08", "/us/368/0851-07", "/us/368/0851-03", "/us/368/0851-05", "/us/368/0851-06", "/us/368/0851-01", "/us/368/0851-04", "/us/368/0851-02" ] }, { "cite": "21 A. 177", "category": "reporters:state_regional", "reporter": "A.", "weight": 3, "pin_cites": [ { "page": "177" }, { "page": "177" } ], "opinion_index": 0 }, { "cite": "83 Me. 21", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 623207 ], "opinion_index": 0, "case_paths": [ "/me/83/0021-01" ] }, { "cite": "45 S.W. 2d 461", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "241 Ky. 818", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 5156013 ], "opinion_index": 0, "case_paths": [ "/ky/241/0818-01" ] }, { "cite": "132 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "260 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573591 ], "opinion_index": 0, "case_paths": [ "/nc/260/0186-01" ] }, { "cite": "142 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574153 ], "opinion_index": 0, "case_paths": [ "/nc/264/0508-01" ] }, { "cite": "159 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575214 ], "opinion_index": 0, "case_paths": [ "/nc/273/0333-01" ] }, { "cite": "27 S.E. 2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611310 ], "pin_cites": [ { "page": "463-64" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0461-01" ] }, { "cite": "87 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616735 ], "opinion_index": 0, "case_paths": [ "/nc/242/0476-01" ] }, { "cite": "16 A. 2d 50", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "pin_cites": [ { "page": "57" } ], "opinion_index": 0 }, { "cite": "340 Pa. 33", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1203358 ], "opinion_index": 0, "case_paths": [ "/pa/340/0033-01" ] }, { "cite": "107 S.E. 466", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "pin_cites": [ { "page": "605" }, { "page": "468" } ], "opinion_index": 0 }, { "cite": "181 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658110 ], "opinion_index": 0, "case_paths": [ "/nc/181/0600-01" ] }, { "cite": "17 N.W. 843", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "52 Mich. 288", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1439322 ], "opinion_index": 0, "case_paths": [ "/mich/52/0288-01" ] }, { "cite": "115 N.E. 140", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "277 Ill. 238", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4862430 ], "opinion_index": 0, "case_paths": [ "/ill/277/0238-01" ] }, { "cite": "73 S. 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St. Rep.", "year": 1908, "pin_cites": [ { "page": "45" } ], "opinion_index": 0 }, { "cite": "74 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1908, "opinion_index": 0 }, { "cite": "237 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604963 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/nc/237/0029-01" ] }, { "cite": "25 S.E. 783", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1908, "opinion_index": 0 }, { "cite": "119 N.C. 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656168 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/nc/119/0784-01" ] }, { "cite": "146 S.E. 2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561846 ], "opinion_index": 0, "case_paths": [ "/nc/266/0606-01" ] }, { "cite": "124 S.E. 629", "category": 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"case_paths": [ "/nc/240/0171-01" ] }, { "cite": "199 S.E. 284", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "pin_cites": [ { "page": "333" }, { "page": "288" } ], "opinion_index": 0 }, { "cite": "214 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630458 ], "opinion_index": 0, "case_paths": [ "/nc/214/0326-01" ] }, { "cite": "22 S.E. 2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629061 ], "opinion_index": 0, "case_paths": [ "/nc/222/0145-01" ] }, { "cite": "194 S.E. 482", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "212 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619002 ], "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0725-01" ] }, { "cite": "51 S.E. 2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "229 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167610 ], "opinion_index": 0, "case_paths": [ "/nc/229/0662-01" ] }, { "cite": "34 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694264 ], "opinion_index": 0, "case_paths": [ "/nc/34/0382-01" ] }, { "cite": "110 S.E. 612", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "pin_cites": [ { "page": "716" }, { "page": "616" } ], "opinion_index": 0 }, { "cite": "183 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658527 ], "opinion_index": 0, "case_paths": [ "/nc/183/0709-01" ] }, { "cite": "184 S.E. 470", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221417 ], "opinion_index": 0, "case_paths": [ "/nc/209/0725-01" ] }, { "cite": "82 S.E. 2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598532 ], "opinion_index": 0, "case_paths": [ "/nc/240/0319-01" ] }, { "cite": "68 S.E. 148", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "152 N.C. 822", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273253 ], "pin_cites": [ { "page": "829" } ], "opinion_index": 0, "case_paths": [ "/nc/152/0822-01" ] }, { "cite": "111 S.E. 869", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "183 N.C. 795", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659280 ], "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/nc/183/0795-01" ] }, { "cite": "82 S. Ct. 85", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "7 L. Ed. 2d 49", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "118 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624570 ], "opinion_index": 0, "case_paths": [ "/nc/254/0101-01" ] } ], "analysis": { "cardinality": 1581, "char_count": 41898, "ocr_confidence": 0.605, "pagerank": { "raw": 1.3013237863250932e-06, "percentile": 0.9894034362621141 }, "sha256": "03cc00223d43b52d3de5b0794f7de081aa8361c84a886bcb7141d911f041c18d", "simhash": "1:b25f7068f635917b", "word_count": 7216 }, "last_updated": "2023-07-14T18:50:20.593891+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. SAMUEL NICK MOORE" ], "opinions": [ { "text": "SHARP, J.\nDefendant\u2019s assignments of error 1 and 2 are that the court erred in overruling his motions for nonsuit. In his brief he argues that the court should have entered \u201ca judgment of nonsuit as to the offenses of first and second degree murder.\u201d\nEvidence for the State tended to show: On 7 March 1968, defendant and Joanne Woolard Moore (Joanne) had been married nine years; they had three children, aged 6 years, 4 years, and 14 months. The family was living in a trailer about 200 yards from the home of Joanne\u2019s parents, Mr. and Mrs. Bill Woolard. The two older children spent the night of 6 March 1968 with their grandparents. The following morning, soon after 7:30, defendant telephoned his mother-in-law and said: \u201cMrs. Woolard, I am going to kill myself and Joanne. Come up and get the baby.\u201d When Mrs. Woolard attempted to remonstrate with him, he said, \u201cYes, Ma\u2019am,\u201d and hung up. After attempting to telephone defendant's two brothers, Mrs. Woolard finally reached her husband at work. About 20-25 minutes after his telephone call, defendant appeared at Mrs. Wool-ard\u2019s door with the baby. Defendant appeared nervous and angry, and the child was unwrapped. He said that he couldn\u2019t talk to Joanne because of the baby's crying and that he was going back to the trailer to talk to her. He then left in his truck.\nMrs. Woolard immediately rang her daughter\u2019s telephone 12-15 times but got no answer. After again telephoning her husband she went to the trailer and entered the living room about 8:15 a.m. There she first saw a man\u2019s bloody tracks \u201cheaded down toward the bedroom\u201d to the left. When she looked to the right and saw Joanne\u2019s body on the kitchen floor, she fled screaming from the trailer. Her screams awakened Mrs. Marie Beddard, who lived across the road. Leaving Mrs. Woolard at her house, Mrs. Beddard went to the trailer. She saw Joanne, clothed in a robe and bedroom slippers, lying on her back in a pool of blood behind the bar, which separated the kitchen and the living room. The right side of her face and head had been blown away. Mrs. Beddard went back to her house and procured a friend to call the sheriff and the rescue squad.\nWithin minutes thereafter, Mr. Woolard and a companion arrived at the trailer. The sheriff arrived between 8:30 and 8:45 a.m. The odor of gunpowder pervaded the trailer. He followed the bloody footprints, which led from the body, across the living room into the first bedroom. On the bed was a 12-gauge Remington shotgun (State\u2019s Exhibit 5), containing two live shells. Behind the sofa in the living room he found an empty shotgun shell (State\u2019s Exhibit 9). Blood, hair, and brain tissue were on the ceiling and all over the kitchen area.\nIn the opinion of E. B. Pearce, Ballistics Expert of the S. B. I., the shell (Exhibit 9) had been fired from the shotgun (Exhibit 5). The doctor who examined the body at 11:40 a.m. found no powder burns on the face. In his opinion, death, which was instantaneous, had resulted from a gunshot wound.\nOn the morning of 7 March 1968, at 7:45, William King went to work shrubbing a ditch behind the trailer. A few minutes thereafter, he saw defendant leave the trailer with the baby in his arms and drive to the Woolard residence. He observed that defendant remained there \u201cjust a few minutes\u201d and then returned to the front of the trailer, where he disappeared from King\u2019s view. In a few minutes he saw defendant leave again and drive toward Griffin\u2019s store, which is about 2% miles from the trailer in the opposite direction from the Woolard home. About 8:10 a.m. defendant entered Griffin\u2019s store and purchased two packs of cigarettes. Griffin noticed nothing unusual in his appearance.\nDefendant was arrested at 1:55 a.m. on Saturday, 9 March 1968, in the Washington Police Station.\nSometime after Christmas 1967, defendant had told Mr. and Mrs. Woolard that if Joanne ever left him he would kill her. On the Monday night preceding 7 March 1968, defendant made a similar statement to Mr. and Mrs. Bullock. On Wednesday afternoon, 6 March 1968, defendant went to Bullock\u2019s place of employment and informed him that he had some time facing him and that he would be in jail before Monday morning. Bobby Harmon, who was present on Wednesday afternoon when defendant talked to Bullock, testified as a witness for defendant that defendant said \u201che was in a little trouble\u201d; that he was on probation and if his wife got a warrant for him he would be locked up before Monday morning.\nThe State introduced' \u2014 -over defendant\u2019s objection \u2014 evidence tending to show: (1) On one occasion during watermelon time in 1965, defendant had slapped his wife several times, knocked her down, torn her clothes from her body down to the waist, and \u201csnatched her out on the porch by the hair of her head\u201d; (2) In October 1965, at the close of the Beaufort County Fair, after he got into a fight with a man named \u201cButterball,\u201d defendant became incensed because his wife had thrown away the pistol he gave her to hide. He beat her and knocked her to the ground, where he tore off her blouse. A highway patrolman found her there unconscious. The next morning, when defendant got out of jail, he found Joanne at the home of his mother and hit her again in the presence of his mother; (3) On 23 December 1967, defendant hit Joanne in the side with a bottle of whiskey and beat her in the face until she fell unconscious to the floor from the sofa. The next day her face and arms were badly bruised; (4) On Saturday night, 2 March 1968, at a restaurant, where defendant and his wife were eating with Mr. and Mrs. Clarence Bullock, defendant took two gasoline credit cards from his wife\u2019s purse, tore them up, and said that he was going to put a stop to her going so much. He also took her wallet. (5) On Sunday morning, 3 March 1968, the woman who lived directly across the highway from the Moore trailer heard Joanne give three or four loud screams. That afternoon Mrs. Bullock observed that Joanne\u2019s eyes were bruised and that a cut on her nose was bleeding. Defendant told Clarence Bullock that he had whipped his wife that morning. The following Monday her eyes were black and her face swollen.\nThe admission of the foregoing testimony is the basis of defendant\u2019s assignments of error Nos. 27, 29, 34, and 35.\nOn 5 August 1968, fourteen days prior to the commencement of the term at which defendant was tried, the solicitor for the State and defendant, individually and by his counsel, stipulated that Dr. Clyde Potter, a physician and surgeon, if present, would testify that on Wednesday, 6 March 1968, he examined Joanne Moore\u2019s face; that she had two black eyes and her nose was severely bruised,, swollen, and sore. The parties also stipulated that this statement could be admitted in evidence without objection during defendant\u2019s; trial. When the State offered the stipulation in evidence, defendant objected \u2014 not \u201cto the form of the statement\u201d \u2014 but \u201cto the evidence contained therein.\u201d The admission of the foregoing stipulation constitutes defendant\u2019s assignment of error No. 41.\nThe testimony of defendant as a witness for himself tended to-show: During nine and a half years of married life he and Joanne-had had only \u201ca few minor quarrels\u201d; that he had always loved his wife and had never threatened to harm her. He had never beateni her, blacked her eyes, knocked her unconscious, or torn her clothes from her person. He had, however, slapped her with his open hand on two occasions: (1) at the fair in October 1965 because, instead of putting his pistol in the automobile as he had directed, she had thrown it in a ditch and lost it; and (2) on 23 December 1965, when, she had insisted upon going with Mr. and Mrs. Clarence Bullock to-Rocky Mount, when the four of them had been drinking. On 3 March 1968, he had had to fight her when she attacked him, and she got a black eye. The night before, he had torn up Joanne\u2019s credit cards because she was charging too much gas. That night he slept on the sofa in the living room. About 6:30 a.m., in attempting to get into bed, he awakened Joanne, who accused him of being out all night. She began to fight and in order to protect himself, he jumped back, and she fell off the bed. She herself had scratched her nose on her diamond engagement ring. The next day, in consequence of this set-to, she had two black eyes. At her request, he bought her sunglasses. He also gave her credit cards to replace the two he had destroyed, and there was no argument between them on Monday. On Tuesday, he took a trailer to Virginia. On Wednesday evening, upon his return, she told him she had been to see Dr. Potter and had consulted an attorney, Mr. LeRoy Scott. He did not know what Joanne wanted. Her mother wanted her to leave him, but Joanne did not want separation papers. He was not angry with his wife, and they had slept together that night. The next morning, however, he told her she must decide during the day whether she wanted him or her mother. He directed her to call him at his mother\u2019s that night and give him her decision.\nFrom the bedroom closet he removed several suits, a ri\u00f1e, and a shotgun, which he had decided to sell to repay some company money he had spent. He put the clothes over his left arm and the guns underneath his right arm and started to take the articles out to his truck while Joanne finished cooking his breakfast. As he walked down the little hall into the living room, he saw a pack of cigarettes on a little table to his right. Joanne was then standing in front of the stove 12-15 feet away cooking his breakfast. She was facing him. He \u201cthrowed the guns\u201d over his left arm and reached with his right for the cigarettes. The gun went off, and he \u201cdidn't know who it hit.\u201d He did not intentionally shoot his wife. The baby cried, and before the smoke cleared he went to it. After that he remembers nothing until about midnight, when he found himself in West Virginia. He does not know how long he stayed there but, \u201crealizing what had happened,\u201d he decided to come on back home. He arrived late at night and went to the police station.\nOn the morning of 7 March 1968, defendant went to the home of his brother, Ray Moore (Ray) about 8:30 and borrowed $12.00 from him. Ray described defendant as pale, very excited, and in a state of shock. As he left, Ray asked him where he was going, and he said he did not know.\nOn cross-examination, defendant testified that he had been convicted of breaking and entering, reckless driving, speeding, simple assault, resisting arrest, assault with a deadly weapon, drunken driving, manufacturing whiskey, forcible trespass, and being drunk and disorderly.\nAfter three two-hour examinations of defendant, made in April and June 1968, Dr. Thomas E. Curtis, a psychiatrist employed by defendant, came to the conclusion that on the morning of 7 March 1968, defendant had suffered the blackout which he had described and that, to have suffered such a \u201ctraumatic blackout,\u201d defendant \u201cwould have had to have known that the discharge from his gun had hit his wife.\u201d\nOther evidence for defendant tended to show: On each occasion upon which witnesses for the State had testified that they had observed cuts or bruises upon the person of Joanne, members of defendant\u2019s family had also seen her and had observed no wounds, discolorations, or anything unusual about her appearance.\nThe preceding resum\u00e9 demonstrates the sufficiency of the evidence to withstand defendant\u2019s motions for nonsuit and to sustain the jury\u2019s verdict of murder in the first degree. Murder in the first degree is the unlawful killing of a human being with malice, premeditation, and deliberation. G.S. 14-17; State v. Faust, 254 N.C. 101, 118 S.E. 2d 769, cert. denied, 368 U.S. 851, 7 L. Ed. 2d 49, 82 S. Ct. 85. If defendant resolved in his mind a fixed purpose to kill his wife and thereafter, because of that previously formed intention, and not because of any legal provocation on her part, he deliberately and intentionally shot her, the three essential elements of murder in the first degree \u2014 premeditation, deliberation, and malice \u2014\u25a0 concurred. \u201cMalice is not only hatred, ill-will, or spite, as it is ordinarily understood \u2014 to be sure that is malice- \u2014 -but it also means that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.\u201d State v. Benson, 183 N.C. 795, 799, 111 S.E. 869, 871. Malice exists as a matter of law \u201cwhenever there has been an unlawful and intentional homicide without excuse or mitigating circumstance.\u201d State v. Baldwin, 152 N.C. 822, 829, 68 S.E. 148, 151.\nThe transcript contains plenary evidence from which the jury could find that defendant, motivated by ill will and express malice toward his wife, shot her with deliberation after having premeditated the deed. The evidence that, just a few minutes before she was shot, defendant had announced his intention to kill her, tended to show premeditation and deliberation as well as malice. Defendant\u2019s motions for nonsuit were properly overruled, and defendant was not entitled to an instruction that he was guilty of murder neither in the first nor in the second degree.\nThe evidence that, on various occasions during approximately three and one-half years prior to her death, defendant had intentionally inflicted personal injuries upon his wife \u201cwas admissible as bearing on intent, malice, motive, premeditation and deliberation on the part of the prisoner.\u201d State v. Gales, 240 N.C. 319, 82 S.E. 2d 80. See State v. Horne, 209 N.C. 725, 184 S.E. 470. In State v. Kincaid, 183 N.C. 709, 110 S.E. 612, the trial judge admitted evidence tending to show the defendant\u2019s maltreatment of his wife \u201cduring a period of several years next preceding her death.\u201d Upon appeal, this Court said, \u201cThe evidence was offered for the purpose of showing intermediate and recurring misconduct of the defendant, and while its weight was to be determined by the jury, the question of its competency was properly decided by the court.\u201d Id. at 716, 110 S.E. at 616. The opinion quoted, and adopted, the following rationale of Justice Nash in State v. Rash, 34 N.C. 382, 384:\n\u201cOrdinarily, the eye of suspicion cannot turn upon the husband as the murderer of his wife; and when charged upon him, in the absence of positive proof, strong and convincing evidence \u2014 evidence that leaves no doubt on the mind that he had towards her that mala mens which alone could lead him to perpetrate the crime \u2014 is always material. How else could this be done than by showing his acts toward her, the manner in which he treated her, and the declarations of his malignity? ... In the domestic relation, the malice of one of the parties is rarely to be proved but from a series of acts; and the longer they have existed and the greater the number of them, the more powerful are they to show the state of his feelings. A single expression and a single act of violence are most frequently the result of temporary passion, as evanescent as the cause producing them. But a long continued course of brutal conduct shows a settled state of feeling inimical to the object. . . . [M]alice may be proved as well by previous acts as by previous threats, and often much more satisfactorily.\u201d\nIn State v. Creech, 229 N.C. 662, 51 S.E. 2d 348, the defendant, indicted for the murder of his wife, \u201ccontended that the court erred in allowing the prosecution to go back over his entire married life with the deceased\u201d (8 years) \u201cto show frequent quarrels, separations, reconciliations and ill-treatment of deceased by defendant throughout most of their married life.\u201d Stacy, C.J., speaking for the Court, said, \u201cThis evidence was competent as tending to show malice on the part of the defendant or a settled state of feeling inimical to the deceased, and the decisions so hold.\u201d Id. at 670, 51 S.E. 2d at 354. Accord, State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484; State v. Allen, 222 N.C. 145, 22 S.E. 2d 233.\nIn State v. Hawkins, 214 N.C. 326, 199 S.E. 284, the defendant contended evidence, that for 3-4 years prior to her death he had beaten, bruised, and whipped his wife, was too remote. \u201cThe remoteness goes to the weight, and not to the competency of the testimony,\u201d said the Court. Id. at 333, 199 S.E. at 288.\nThe evidence of defendant\u2019s fight with Butterball at the county fair in October 1965, had it been an isolated instance, would clearly have been incompetent. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364. This fight, however, immediately preceded and precipitated defendant\u2019s attack upon his wife. It was a component of the same aggressive action, and its admission was not error.\nDefendant\u2019s assignments of error Nos. 27, 29, 34 and 35 are overruled.\nDefendant\u2019s assignment of error No. 43 attacks the introduction of the stipulation with reference to the testimony which Dr. Potter was prepared to give. Defendant concedes (1) that he and his three attorneys signed the writing which stipulated that if Dr. Potter were present at the trial he would testify that on the day before her death Joanne\u2019s face was cut and bruised and that the stipulation could be admitted in evidence without objection, and (2) that at the trial he objected \u201cto the evidence contained therein\u201d and not to the form of the statement. Yet he now asserts that he is entitled to a new trial because the \u201cconstitutional right of confrontation\u201d cannot be waived in a capital case.\nN. C. Const. Art. I \u00a7 11 provides: \u201cIn all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony. . . .\u201d The Sixth Amendment to the U. S. Constitution, made obligatory upon the states by the Fourteenth Amendment, gives an accused this same protection. Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). The provision affirms the common-law rule that the witness must be present before the triers of fact and the accused so that they are \u201c 'put face to face.\u2019 \u201d State v. Dixon, 185 N.C. 727, 117 S.E. 170. It also includes \u201cthe more important privilege of being present in person\u201d at every stage of the trial. State v. Hartsfield, 188 N.C. 357, 360, 124 S.E. 629, 631.\nWhile it is well established in this State that an accused cannot waive his right to be present at every stage of his trial upon an indictment charging him with a capital felony, State v. Ferebee, 266 N.C. 606, 146 S.E. 2d 666, and cases cited therein, this Court has not heretofore answered the question whether a defendant in a capital case can waive his right to be confronted with the witnesses against him. The cases upon which defendant bases his contention that he cannot waive this right either relate to a defendant\u2019s presence (or temporary absence) at the trial or were prosecutions for misdemeanors. In appeals involving misdemeanors and felonies less than capital, this Court has said that the right for accused to confront the State\u2019s witness is a personal privilege which he may waive either by express consent or by a failure to assert in apt time. State v. Hartsfield, supra; State v. Mitchell, 119 N.C. 784, 25 S.E. 783. See also Miller v. State, 237 N.C. 29, 74 S.E. 2d 513. On this point, \u201cThe authorities are practically uniform.\u201d Annot., 129 Am. St. Rep. 23, 45 (1908); accord, 23 C. J. S. Criminal Law \u00a7 1009 (1961). The rationale is that the court\u2019s power to try a defendant is not dependent upon his exercise of his constitutional right to be confronted by the State\u2019s witness. This right is a personal privilege for the benefit of the accused which does not affect the general public. The State v. Poison, 29 Iowa 133, 135; State v. Wagner, 78 Mo. 644; Blagg v. State, 36 Okla. Cr. 337, 254 P. 506; State v. Mortensen, 26 Utah 312, 73 P. 562; Williams v. State, 61 Wis. 281, 21 N.W. 56. Defendant\u2019s presence at his trial for a capital felony, however, is a matter of public as well as private concern, 16 C. J. S. Constitutional Law \u00a7 9 (1956). Public policy requires his attendance at such a trial.\nWe agree with the Kentucky court, which pointed out in Bonar v. Commonwealth, 180 Ky. 338, 202 S.W. 676, that there are \u201cno sound or other than sentimental reasons\u201d for holding that the privilege cannot be waived where the felony charged is a capital one. In People v. Dessauer, 38 Cal. 2d 547, 241 P. 2d 238, cert. denied, 344 U.S. 858, 97 L. Ed. 666, 73 S. Ct. 96, a case in which the death penalty was affirmed, the defendant stipulated that the People\u2019s case might \u201c \u2018be submitted to the Court on the testimony taken at the preliminary examination\u2019 \u201d with the \u201c \u2018same force and effect as though those witnesses were here, sworn and testified, the defendant waiving his right ... to be confronted by those witnesses. . . .\u2019\u201d In holding that the defendant had effectively waived his right to confrontation, the court said: \u201cThe right to be confronted by witnesses, whether assured by Constitution or statute, may be waived. . . .\u201d Id. at 552, 241 P. 2d at 241. Accord, People v. Schultz-Knighten, 277 Ill. 238, 115 N.E. 140; People v. Murray, 52 Mich. 288, 17 N.W. 843.\nIn State v. Mortensen, supra, the defendant, appealing a death sentence, had stipulated with the prosecution that if a particular witness were present he would give certain testimony upon appeal. To his contention that he could not waive his constitutional right of confrontation, the Utah Supreme Court replied: \u201cThe main reason for the confrontation of witnesses is to afford the accused an opportunity for cross-examination, and this is a privilege which he may waive.\u201d Id. at 326, 73 P. at 566. In State v. Harris, 181 N.C. 600, 107 S.E. 466, a case in which this Court affirmed a death sentence, Clark, C.J., said: \u201cThe right to confront witnesses necessarily includes the right to cross-examine them, but this is a right which the prisoner\u2019s counsel could waive.\u201d Id. at 605, 107 S.E. at 468.\nDuring the course of the trial of Commonwealth v. Petrillo, 340 Pa. 33, 16 A. 2d 50, the defendant, charged with murder, changed his plea of \u201cnot guilty\u201d to \u201cguilty.\u201d Two other judges were then called in to aid the trial judge in determining the degree of the defendant\u2019s guilt and fixing his punishment. With the defendant\u2019s express consent, they considered \u201cthe testimony of a cross-examined witness unseen and unheard by them.\u201d In affirming a death sentence, the Supreme Court said:\n\u201cAppellant\u2019s proposition that triers of fact are \u2018completely incapacitated from judging the credibility of\u2019 witnesses they did not see or hear, is untenable. If it were sound, dying declarations and many other forms of hearsay testimony as well as depositions and testimony given on former trials would all have to be excluded in the trial of capital and other criminal cases.\u201d Id. at 46, 16 A. 2d at 57.\nIn Blagg v. State, supra, in holding that the defendant was bound by his stipulation, the court said it would not do \u201c \u2018to say that because the state has a peculiar interest in protecting the citizen accused of crime to the extent of his constitutional rights that he shall in no case be allowed to waive them, for in some cases it may be to his interest to waive them, and the denial of the right to do so would defeat the very object in view when the rights were given, and cause them to operate to the injury rather than to the benefit of the accused.\u2019 \u201d Id. at 343, 254 P. at 508.\nWe hold the constitutional right of an accused to be confronted by the witness against him is a personal privilege, which he may waive even in a capital case. Assignment of error No. 43 is overruled.\nDefendant assigns as error certain of the court\u2019s instructions to the jury (assignments of error 6, 8, 9, 12, 18, 19, and 20). He asserts (1) that the charge as it related to his testimony with reference to the circumstances surrounding his wife\u2019s death was an inadequate application of the law pertaining to a killing by misadventure and to manslaughter, and (2) that the court erred in failing (a) to distinguish between the two degrees of manslaughter and (b) to submit to the jury the issue of defendant\u2019s guilt of involuntary manslaughter. These assignments must be sustained.\nAt the beginning of his charge the judge instructed the jury that it could return a verdict of guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty. Then, after having defined both voluntary and involuntary manslaughter in general terms, the court gave the following mandate:\n\u201c[W]hen you come to consider his guilt or innocence on the charge of manslaughter, I instruct you that you should ask yourselves these questions: 1. Did the defendant shoot and kill his wife, Joanne Moore? 2. Did he kill her intentionally? 3. Did he kill her unlawfully, in the heat of passion, by reason of anger suddenly aroused and before sufficient time had elapsed for passion to subside and reason to resume its sway and habitual control? If you find from the evidence and beyond a reasonable doubt that the truth requires an affirmative answer to all three of these questions; that they should all three be answered \u2018Yes,\u2019 beyond a reasonable doubt, then it would be your duty to convict the defendant of manslaughter in the case. If the State has failed to so satisfy you or if you are not satisfied beyond a reasonable doubt that all three of these questions should be answered \u2018Yes,\u2019 it would be your duty to return a verdict of not guilty to the charge of manslaughter.\u201d\nThe confusion in the foregoing excerpt is manifest. If defendant shot his wife intentionally, he would be guilty of murder in the first degree or murder in the second degree unless he could rebut the presumption of malice arising from an intentional shooting, and thereby reduce the crime to voluntary manslaughter. He could do so only by proving to the jury\u2019s satisfaction one of the following defenses: (a) While fighting in self-defense he killed his wife by using excessive force. (If he used no more force than reasonably appeared to him to be necessary to defend himself, he committed no crime.) (b) He killed her in the heat of passion. In the entire transcript there is no evidence of either defense, nor does defendant contend that he killed his wife in self-defense or in the heat of passion. The issue of defendant\u2019s guilt of voluntary manslaughter, therefore, does not arise. The issue of involuntary manslaughter, however, is presented since defendant\u2019s testimony would support a finding that he did not intentionally shoot his wife but that his culpable negligence caused her death. A charge which made his guilt of manslaughter depend upon whether he killed his wife in the heat of passion when there was no evidence of such a killing, but there was evidence that her death resulted from his culpable negligence, constitutes prejudicial error.\nIf the jury should fail to be convinced beyond a reasonable doubt that defendant intentionally shot his wife, under the evidence presented, the verdict would necessarily be either \u201cguilty of involuntary manslaughter\u201d or \u201cnot guilty.\u201d Defendant was, therefore, entitled to have the specific question of his guilt of involuntary manslaughter submitted to the jury.\nWhere there is evidence of defendant\u2019s guilt of a lesser degree of the crime charged in the indictment, the court must submit defendant\u2019s guilt of the lesser included offense to the jury; if he fails to do so, the error is not cured by a verdict convicting defendant of the offense charged. State v. Davis, 242 N.C. 476, 87 S.E. 2d 906; 3 N. C. Index 2d Criminal Law \u00a7 115. The reason for the rule was stated by Stacy, C.J., in State v. DeGraffenreid, 223 N.C. 461, 463-64, 27 S.E. 2d 130, 132: \u201c[T]he defendant is entitled to have the different views presented to the jury, under a proper charge, and an error in respect of the lesser offense is not cured by a verdict convicting the defendant of a higher offense charged in the bill of indictment, for in such case it cannot be known whether the jury would have convicted of a lesser degree of the same crime if the different views, arising on the evidence, had been correctly presented by the trial court.\u201d\nA defendant\u2019s assertion of accidental killing is not an affirmative defense. In a prosecution for unlawful homicide, the burden is always upon the state to prove an unlawful slaying. State v. Griffin, 273 N.C. 333, 159 S.E. 2d 889; State v. Phillips, 264 N.C. 508, 142 S.E. 2d 337. If the State is unable to prove an intentional shooting, no presumption of malice arises, and, in order to convict this defendant of unlawful homicide, the State must satisfy the jury beyond a reasonable doubt that defendant\u2019s culpable negligence proximately caused the death of his wife. Otherwise, defendant would be entitled to an acquittal.\nDefendant\u2019s testimony, that as he was leaving the trailer with clothes over his left arm and a rifle and shotgun underneath his right arm \u201che throwed the guns over his left arm\u201d to reach with his right for cigarettes on a table, required the court to submit the issue of his guilt of involuntary manslaughter to the jury. Although defendant does not admit in so many words that he shot his wife, it is implicit in his testimony that she was killed by a discharge from the shotgun which he was handling at the time. His contentions are: (1) The gun discharged accidentally, without design or culpable negligence on his part, and his wife\u2019s death was an excusable homicide. (2) If he is criminally responsible for her death, it is solely because he was handling the gun in a culpably negligent manner at the time of its discharge, and the most serious crime of which he could be convicted is involuntary manslaughter.\nOne who handles a firearm in a reckless or wanton manner and thereby unintentionally causes the death of another is guilty of involuntary manslaughter. State v. Griffin, supra; State v. Brooks, 260 N.C. 186, 132 S.E. 2d 354. See also the authorities cited in the opinions in these two cases.\nFor these errors in the charge there must be a new trial. We therefore deem it necessary to discuss only one other (No. 52) of defendant\u2019s assignments of error.\nRay Moore, on cross-examination, said that when defendant came by his home on the morning of 7 March he did not tell him that he had shot his wife. Thereafter, over defendant\u2019s objection, Deputy Sheriff E. 0. Davis, a witness for the State, was permitted to testify that on the morning of 7 March 1968, Ray had informed him that defendant had told Ray there had been a disturbance and Joanne had been shot accidentally; that Joanne had the gun, passed it to defendant, and said, \u201cShoot me\u201d; and that \u201cduring the transaction the gun went off.\u201d (Ray returned to the stand to deny making the statement to Davis.)\nDavis\u2019 testimony as to what Ray Moore told him defendant had said was, of course, double hearsay. Stansbury, N. C. Evidence (3d Ed. 1963) \u00a7 138. The State contends, however, that it was competent to contradict or impeach Ray. Conceding that Ray\u2019s statement was inconsistent with his testimony and that it tended to impeach him, we nevertheless hold it incompetent. Had Ray testified that defendant had made the disputed statement to him. it would have been substantive evidence, competent as an admission. Id. at \u00a7 167. Ray, however, denied that defendant told him he had shot his wife. This denial did not tend to establish any material fact in the case; it was negative testimony which proved nothing. Yet, by Davis\u2019 testimony, to which defendant entered a general objection, the State was given the benefit of hearsay evidence \u2014 material but incompetent \u2014 , which tended to show that defendant, knowing his wife had been shot after a \u201cdisturbance\u201d and in \u201ca transaction\u201d with him, had fled the scene. The judge made no attempt to restrict this evidence to the impeachment of Ray. Piad he done so, however, the character of the evidence made it highly improbable that the jury would have restricted it. In short, the prejudicial effect of such evidence outweighs its legitimate use and requires its exclusion.\nMcCormick, Law of Evidence (1954) \u00a7 36 states the rule applicable to the situation here presented: \u201c[I]f a party interrogates a witness about a fact which would be favorable to the examiner if true, and receives a reply which is merely negative in its effect on examiner\u2019s case, the examiner may not by extrinsic evidence prove that the first witness had earlier stated that the fact was true as desired by the enquirer. An affirmative answer would have been material and subject to be impeached by an inconsistent statement, but a negative answer is not damaging to the examiner, but merely disappointing, and may not be thus impeached. In this situation, the policy involved is not the saving of time and confusion, . . . but the protection of the other party against the hearsay use by the jury of the previous statement.\u201d\nMiller v. Commonwealth, 241 Ky. 818, 45 S.W. 2d 461, applies the foregoing rule. Witness H was asked if she had not heard the defendant say that he was going to kill deceased. She stated that she had not. The prosecution was then permitted to offer the testimony of witness J that H told him the defendant had said he was going to kill deceased. In awarding the defendant a new trial, the court said: \u201c[A] witness who fails to testify to substantive facts cannot be contradicted by asking him if he had not stated such facts to another person out of court, and then proving by such person that the witness had made the statements out of court. Such procedure transforms mere hearsay into substantive evidence.\u201d Id. at 821, 45 S.W. 2d at 462.\nAn analogous case is Woodroffe v. Jones, 83 Me. 21, 21 A. 177. The plaintiff sued for personal injuries sustained in a fall on a defective walk. On cross-examination, the plaintiff\u2019s husband, who had given testimony material to her case, was asked if he had not previously warned the plaintiff about wearing high heels. He denied that he had done so. Whereupon, the defendant called a witness who, over objection, testified that the husband had said immediately after the accident \u201c \u2018that he had told his wife about wearing such high-heeled boots.\u2019 \u201d Id. at 21, 21 A. at 177. In awarding a new trial for the admission of this evidence, the court said:\n\u201cThe testimony admitted is incompetent to prove, either that the plaintiff wore high-heeled shoes, or that her husband had cautioned her about wearing them, because it is hearsay; and yet, although it does not tend to prove any material fact in the case, and may, therefore, be said to be immaterial, it is of that mischievous character likely to be taken by the jury to prove both, and cannot be considered harmless. . . . Nor is the testimony admissible as contradicting the denial of the witness, and thereby tending to impeach his credibility; for the witness testified to a negative that had no probative force in the case; and his testimony, sought to be contradicted, was entirely irrelevant and immaterial. ...\u201d Id. at 21-22, 21 A. at 177.\nNew trial.", "type": "majority", "author": "SHARP, J." } ], "attorneys": [ "Robert Morgan, Attorney General; Ralph Moody, Deputy Attorney General, for the State.", "Tharrington \u2022& Smith and McMillan \u2022& McMillan for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SAMUEL NICK MOORE\nNo. 4\n(Filed 9 April 1969)\n1. Homicide \u00a7 SI\u2014 first degree murder \u2014 nonsuit\nState\u2019s evidence is held sufficient to be submitted to tlie jury on the issue of defendant\u2019s guilt of murder in the first degree of his wife.\n2. Homicide \u00a7 4\u2014 elements of first degree murder\nMurder in the first degree is the unlawful killing of a human being with malice, premeditation and deliberation. G.S. 14-17.\nS.Homicide \u00a7 4\u2014 elements of first degree murder\nThe three essential elements of murder in the first degree \u2014 premeditation, deliberation and malice \u2014 concur if defendant resolved in his mind a fixed purpose to kill his wife and thereafter, because of that previously formed intention and not because of any legal provocation on her part deliberately and intentionally shoots her.\n4. Homicide \u00a7 4\u2014 elements of first degree murder \u2014 malice\nMalice exists as a matter of law whenever there has been an unlawful and intentional homicide without excuse or mitigating circumstances.\n5. Homicide \u00a7\u00a7 17, 18\u2014 first degree murder \u2014 evidence of malice and premeditation\nIn a prosecution for murder in the first degree, evidence that just a few minutes before his wife was shot defendant had announced his intention to kill her tends to show premeditation and deliberation as well as malice.\n6. Homicide \u00a7 15; Criminal Law \u00a7 84\u2014 first degree murder \u2014 competency of evidence \u2014 prior assaults on victim\nIn a prosecution charging defendant with the first-degree murder of his wife, evidence that on various occasions during approximately three and one-half years prior to her death defendant had intentionally inflicted personal injuries upon his wife is admissible as bearing on intent, malice, motive, premeditation and deliberation on the part of defendant.\n7. Homicide \u00a7 15; Criminal Law \u00a7 34\u2014 first degree murder \u2014 competency of evidence \u2014 prior assault on third person\nIn a prosecution charging defendant with the first degree murder of his wife, evidence of defendant\u2019s fight with another person at a county fair some two and one-half years prior to the homicide is admissible where the fight immediately preceded and precipitated defendant\u2019s attack upon his wife.\n8. Constitutional Law \u00a7 31\u2014 right of confrontation of witnesses\nThe right of confrontation guaranteed to every defendant in a criminal prosecution affirms the common law rule that the witnesses must be present before the triers of fact and the accused so that they are put face to face, and also includes the more important privilege of defendant\u2019s being present in person at every stage of the- trial. N. C. Constitution, Art. I, \u00a7 11; TJ. S. Constitution, VI and XIV Amendments.\n9. Constitutional Law \u00a7 37\u2014 defendant\u2019s waiver of right to he present at trial \u2014 capital felony\nAn accused cannot waive his right to be present at every stage of his trial upon an indictment charging him with a capital felony.\n10. Constitutional Law \u00a7 37\u2014 waiver of right to confront witnesses \u2014 non-capital felonies and misdemeanors\nThe right of accused to confront the State\u2019s witness is a personal privilege which he may waive either by express consent or by a failure to assert .in apt time.\n11. Constitutional Law \u00a7 37\u2014 waiver o\u00ed right to confront witnesses \u2014 capital case\nEven in a capital ease the constitutional right of an accused to be confronted by the witness against him is a personal privilege which he may waive.\n12. Homicide \u00a7 27\u2014 instructions on voluntary and involuntary manslaughter\nIn a prosecution charging defendant with the homicide of his wife, issue of defendant\u2019s guilt of voluntary manslaughter does not arise where there is no evidence that (1) defendant killed his wife while fighting in self-defense or that (2) defendant killed her in the heat of passion; but issue of involuntary manslaughter does arise where defendant\u2019s testimony would support a finding that his culpable negligence in handling a shotgun caused her death.\n13. Criminal Law \u00a7 115\u2014 instructions on lesser degrees of the offense charged\nWhere there is evidence of defendant\u2019s guilt of a lesser degree of the crime charged in the indictment, the court must submit defendant\u2019s guilt of the lesser included offense to the jury; if he fails to do so, the error is not cured by a verdict convicting defendant of the offense charged.\n14. Homicide \u00a7 11\u2014 defense \u2014 accidental killing\nA defendant\u2019s assertion of accidental killing is not an affirmative defense.\n15. Homicide \u00a7 14\u2014 burden of proof of unlawful slaying\nIn a prosecution for unlawful homicide, the burden is always on the State to prove an unlawful slaying.\n16. Homicide \u00a7\u00a7 21, 27\u2014 instructions on involuntary manslaughter \u2014 sufficiency of evidence\nIn a prosecution charging defendant with the homicide of his wife, defendant is entitled to have the specific question of his guilt of involuntary manslaughter submitted to the jury where his testimony is to the effect that as he was leaving the home with clothes over his left arm and a rifle and shotgun underneath his right arm, defendant \u201cthrowed the guns over his left arm\u201d to reach with his right for cigarettes on a table and that a gun went off.\n17. Homicide \u00a7 6\u2014 involuntary manslaughter \u2014 reckless use of firearms\nOne who handles a firearm in a reckless or wanton manner and thereby unintentionally causes the death of another is guilty of involuntary manslaughter.\n18. Oriminal Law \u00a7 89\u2014 impeachment of negative testimony\nIn a prosecution for first degree murder, where defendant\u2019s witness denied on cross-examination that defendant told him on the day of the homicide that he had shot his wife, it was error to allow the State to offer for purpose of impeachment and contradiction the testimony of a deputy sheriff as to what the witness told him defendant had said.\n19. Criminal Law \u00a7 89\u2014 impeachment of negative evidence\nIf a party interrogates a witness about a fact which would be favorable to the examiner if true, and receives a reply which is merely negative in its effect on examiner\u2019s case, the examiner may not by extrinsic evidence prove that the first witness had earlier stated that the fact was true as desired by the enquirer.\nAppeal by defendant from Cowper, J., 19 August 1968 Regular Criminal Session of Beaufort.\nDefendant was tried and convicted upon an indictment which charged that, on 7 March 1968, he \u201cfeloniously, wilfully, and of his malice aforethought, did kill and murder Joanne Woolard Moore,\u201d his wife. Upon the jury\u2019s recommendation the court imposed the mandatory life sentence. Defendant appealed, assigning as error the court\u2019s failure to allow his motion for nonsuit, the admission of certain evidence, and portions of the charge.\nRobert Morgan, Attorney General; Ralph Moody, Deputy Attorney General, for the State.\nTharrington \u2022& Smith and McMillan \u2022& McMillan for defendant appellant." }, "file_name": "0198-01", "first_page_order": 228, "last_page_order": 244 }