{ "id": 8566877, "name": "STATE OF NORTH CAROLINA v. DOUGLAS CRUMP", "name_abbreviation": "State v. Crump", "decision_date": "1971-01-20", "docket_number": "No. 98", "first_page": "573", "last_page": "591", "citations": [ { "type": "official", "cite": "277 N.C. 573" } ], "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": "138 S.E. 2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570029 ], "opinion_index": 0, "case_paths": [ "/nc/262/0592-01" ] }, { "cite": "50 S.E. 2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166634 ], "opinion_index": 0, "case_paths": [ "/nc/229/0497-01" ] }, { "cite": "172 S.E. 399", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630870 ], "opinion_index": 0, "case_paths": [ "/nc/205/0661-01" ] }, { "cite": "161 S.E. 81", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627240 ], "opinion_index": 0, "case_paths": [ "/nc/201/0620-01" ] }, { "cite": "134 S.E. 2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572845 ], "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0263-01" ] }, { "cite": "154 S.E. 2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566668 ], "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0215-01" ] }, { "cite": "160 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "27" } ], "opinion_index": 0 }, { "cite": "273 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575144 ], "pin_cites": [ { "page": "310-311" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0306-01" ] }, { "cite": "164 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561086 ], "opinion_index": 0, "case_paths": [ "/nc/274/0574-01" ] }, { "cite": "392 U.S. 665", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177533 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/392/0665-01" ] }, { "cite": "158 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "272 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574032 ], "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0556-01" ] }, { "cite": "95 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "906" } ], "opinion_index": 0 }, { "cite": "245 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610972 ], "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0344-01" ] }, { "cite": "55 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628134 ], "opinion_index": 0, "case_paths": [ "/nc/231/0059-01" ] }, { "cite": "33 S.E. 2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600990 ], "opinion_index": 0, "case_paths": [ "/nc/225/0109-01" ] }, { "cite": "158 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "644-646" } ], "opinion_index": 0 }, { "cite": "272 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572884 ], "pin_cites": [ { "page": "336-339" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0327-01" ] }, { "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" ] }, { "cite": "150 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "10-12" } ], "opinion_index": 0 }, { "cite": "268 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560152 ], "pin_cites": [ { "page": "81-83" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0069-01" ] }, { "cite": "139 S.E. 2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "263 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569876 ], "pin_cites": [ { "page": "332-333" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0327-01" ] }, { "cite": "145 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "835" } ], "opinion_index": 0 }, { "cite": "266 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560200 ], "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0269-01" ] }, { "cite": "161 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "567" } ], "opinion_index": 0 }, { "cite": "274 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559380 ], "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0062-01" ] } ], "analysis": { "cardinality": 1327, "char_count": 42796, "ocr_confidence": 0.506, "pagerank": { "raw": 3.314753142665689e-07, "percentile": 0.8726613018751286 }, "sha256": "6f0015cd60600f82f8d06733cdcd2f1e37708ef16ad98c9c20eb4f21ced11c55", "simhash": "1:f3da8df85e0015fb", "word_count": 7364 }, "last_updated": "2023-07-14T17:02:40.568981+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DOUGLAS CRUMP" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nAssignments of error based on exceptions to the denial of defendant\u2019s motion (s) for judgment as in case of nonsuit are without merit. The evidence offered by the State was amply sufficient to support a finding that defendant intentionally shot Ben and that the shotgun wound so inflicted proximately caused Ben\u2019s death. If the jury so found from the evidence beyond a reasonable doubt, two presumptions arose: (1) That the killing was unlawful, and (2) that it was done with malice; and, nothing else appearing, defendant would be guilty of murder in the second degree. State v. Propst, 274 N.C. 62, 71, 161 S.E. 2d 560, 567, and cases cited. If and when these presumptions arise, it is incumbent upon the defendant to satisfy the jury of facts which justified or mitigated the killing in accordance with legal principles too well settled to warrant reiteration.\nIt is noted that all admitted evidence is for consideration when passing upon a motion to dismiss as in case of nonsuit. State v. Walker, 266 N.C. 269, 272, 145 S.E. 2d 833, 835. Questions raised by defendant as to the competency of portions of admitted State\u2019s evidence are discussed below.\nDefendant assigns as error the admission of Sue Toney\u2019s testimony that, during their travel towards the hospital in Eutherfordton, Ben told her that Douglas had shot him. Upon objection to the admission of this testimony, the court, in the absence of the jury, conducted a voir dire hearing at which Sue Toney and Patrolman Davis testified. At the conclusion of the evidence, the court made the following factual findings: \u201c1. The statement was made after Ben Crump had sustained a gunshot wound in his upper thigh and was en route to a hospital. 2. The deceased was, at the time, in actual danger of death. 3. The deceased stated that he knew he was dying and told the witness, Sue Toney, to take care of their children. He also stated to Patrolman L. D. Davis of the Highway Patrol that he was dying. 4. The deceased had full apprehension of his danger. 5. Death, thereafter, ensued from the gunshot wound, the deceased being dead upon arrival at the Rutherford Hospital, as testified to by Dr. Hendricks.\u201d The evidence fully supports the quoted findings. Hence, the court properly admitted as dying declarations the testimony of Sue Toney as to statements made to her by Ben. State v. Brown, 263 N.C. 327, 332-333, 139 S.E. 2d 609, 612, and cases cited.\nIt is noted that, after Sue\u2019s testimony as to Ben\u2019s declaration had been admitted, Patrolman Davis testified, without objection, that when he stopped the Toney car, Ben was in the back seat, lying face up with his head in Sue\u2019s lap, at which time Ben said: \u201cI\u2019m dying, I\u2019m dying, my brother shot me.\u201d\nDefendant assigns as error the admission of the testimony of Patrolman Davis that, when he stopped the pickup truck operated by Dale in which defendant and others were riding, defendant stated in substance he had shot Ben and identified the shotgun and the shell with which he had shot him. Upon defendant\u2019s objection to the admission of the testimony, the court, in the absence of the jury, conducted a voir dire hearing at which the only testimony was that of Patrolman Davis. At the conclusion of the evidence, the court made the following factual findings: \u201cBefore making any statement, the defendant was advised that he had a right to remain silent; that anything he said might be used against him; that he had a right to have a lawyer present before answering any questions; that if he could not afford a lawyer, one would be appointed for him; and if he started answering questions, he might stop at any time. He was then asked (if) he wanted a lawyer and stated that he understood his rights and he thereafter freely, voluntarily, without coercion made a statement to Trooper Davis.\u201d The sole ground on which defendant bases this assignment is that the evidence on voir dire did not support the court\u2019s finding that defendant \u201cwas advised that if he could not afford a lawyer, one would be appointed for him . . . .\u201d\nUnquestionably, the evidence at the voir dire hearing supports fully all of the court\u2019s factual findings other than the particular finding now challenged by defendant. With reference to the challenged finding, the record discloses: Defendant was advised of his constitutional rights by Sheriff Huskey. Huskey so advised defendant by reading to him the statement of constitutional rights set forth on a card handed to him by Patrolman Davis. The court asked Davis, \u201cDo you still have that same copy with you?\u201d Davis answered, \u201cYes.\u201d The record is silent as to whether this card was shown to the court. When Davis was asked to \u201ctell His Honor what Sheriff Huskey read to Mr. Douglas Crump on the morning of November 30th, 1969,\u201d the narration by Davis did not include a statement by Huskey to the effect that \u201cif he (defendant) could not afford a lawyer, one would be appointed for him.\u201d According to Davis, defendant stated he understood his constitutional rights and proceeded voluntarily to make the statements attributed to him by Davis in his testimony before the jury.\nSince the record does not disclose the contents of the card from which Sheriff Huskey read, it must be conceded the evidence was insufficient to support the challenged finding. Even so, for reasons stated below, error in that respect was insufficient to render incompetent the testimony of Davis as to statements made by defendant to the effect he had shot Ben with the identified shotgun and (spent) shell. Nor does it appear that such error was prejudicial to defendant.\nIt does not appear that defendant was then an indigent and unable to compensate counsel of his choice. In fact, at the preliminary hearing on December 11, 1969, defendant was represented by privately-retained counsel. If, in fact, defendant was able to select and compensate counsel, it was unnecessary to advise defendant in respect of the rights of an indigent. State v. Gray, 268 N.C. 69, 81-83, 150 S.E. 2d 1, 10-12.\nDefendant was not under arrest or in custody when the statements attributed to him were made. Having been advised of the shooting and presumably of Ben\u2019s death, the officers, as was their duty, proceeded to investigate whether a crime had been committed and, if so, by whom. In their investigation, they undertook to find out what they could from the persons who were present when the shooting occurred. Obviously, they had reason to suspect that defendant had shot Ben. However, they knew nothing of the circumstances under which the shooting had occurred. The record does not indicate any question asked by any officer. Rather, it indicates that, after being advised of his constitutional rights, defendant voluntarily made the statements attributed to him. When the statements were made, defendant\u2019s two older brothers, Howard and Dale, and Dale\u2019s wife and defendant\u2019s wife were present. The evidence is unclear as to whether defendant was under restraint when his statements were made. Nothing occurred that could be considered an \u201cincommunicado interrogation of individuals in a police-dominated atmosphere.\u201d There is strong basis for the contention that, under the circumstances, it was not necessary to give any of the warnings listed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694. Cf. State v. Meadows, 272 N.C. 327, 336-339, 158 S.E. 2d 638, 644-646.\nConceding, arguendo, that the circumstances required that defendant be warned of his constitutional rights in strict compliance with the specific warnings set forth in Miranda, the fact that the warnings given defendant were incomplete was not prejudicial to defendant. At trial, defendant testified that he shot Ben and testified to the circumstances under which he did so. His contention and testimony was that he did so in self-defense.\n\u201cExceptions by the defendant to evidence of a State\u2019s witness will not be sustained where the defendant or his witness testifies, without objection, to substantially the same facts. S. v. Matheson, 225 N.C. 109, 33 S.E. 2d 590. Likewise, the admission of evidence as to facts which the defendant admitted in his own testimony, cannot be held prejudicial. S. v. Merritt, 231 N.C. 59, 55 S.E. 2d 804.\u201d State v. Adams, 245 N.C. 344, 349, 95 S.E. 2d 902, 906; State v. McDaniel, 272 N.C. 556, 563, 158 S.E. 2d 874, 881, vacated 392 U.S. 665, 20 L. Ed. 2d 1359, 88 S.Ct. 2310, on remand 274 N.C. 574, 164 S.E. 2d 469.\nIt is noteworthy that, independent of the statements attributed to defendant on the occasion of his arrest, the State\u2019s evidence was sufficient to support a finding that defendant intentionally shot Ben and thereby proximately caused his death.\nDefendant assigns as error the responses of the court to the solicitor\u2019s objection to defendant\u2019s testimony that Dale hollered to him, saying, \u201crun, Doug, Ben is going to kill us.\u201d This testimony was competent for consideration as to whether defendant shot Ben in self-defense under circumstances when it was or reasonably appeared to be necessary to do so to protect and defend himself from death or great bodily harm. The reasonable effect of Dale\u2019s statement upon defendant\u2019s apprehension of danger of death or great bodily harm rather than the truthfulness of what Dale said is the basis upon which the testimony as to Dale\u2019s statement was competent. \u201cIf a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay.\u201d Stansbury, North Carolina Evidence \u00a7 141 (2d ed. 1963). The plea of self-defense rests upon necessity, real or apparent. In passing upon whether defendant, when he shot Ben, believed it was necessary to do so to protect and defend himself from death or great bodily harm and had reasonable grounds for that belief, the reasonableness of defendant\u2019s belief or apprehension must be judged by the facts and circumstances as they appeared to him when the shooting occurred. State v. Kirby, 273 N.C. 306, 310-311, 160 S.E. 2d 24, 27. As stated by Justice Branch in State v. Johnson, 270 N.C. 215, 219, 154 S.E. 2d 48, 52: \u201c(A) jury should, as far as is possible, be placed in defendant\u2019s situation and possess the same knowledge of danger and the same necessity for action, in order to decide if defendant acted under reasonable apprehension of danger to his person or his life.\u201d Dale\u2019s outcry was one of the circumstances for consideration by the jury in order to place them as far as possible in the position of defendant when the shooting occurred.\nThe record of the direct testimony of defendant includes the following:\n\u201c. . . . When we got back to the house, Howard was sitting on the front porch and I went in the house and told my brother Dale \u2018Dale, I am leaving.\u2019\n(The Following is Given in Transcript Form :)\n\u201cThe Court: What brother are you talking about?\n\u201cA. Dale. He said, \u2018well\u2014\n\u201cMr. Lowe: Objection to what Dale said now.\n\u201cThe Court: Don\u2019t say what anybody else said.\n\u201cA. I told my brother, \u2014well, I just told him and I went out the door and before I got out the door, my brother Ben picked up a .22 rifle and hit Howard over the head with it and him and Howard was wrestling in the yard, fighting. So I went out to the truck and I reckon\u2014\n\u201cMr. Lowe: Objection to what he reckons.\n\u201cThe Court : Just tell what you did.\n\u201cA. I went out to the truck and before I got to the truck, Dale hollered and told me\u2014\n\u201cMr. Lowe: Objection to what Dale said.\n\u201cThe Court: Don\u2019t say what Dale said.\n\u201cDefendant\u2019s Exception and Assignment of Error Number Five: Defendant excepts to and assigns as error the sustaining of the objection by the State to the testimony of the defend\u00e1nt that his brother Dale hollered and told him, \u2018run, Doug, Ben is going to kill us.\u2019 This is defendant\u2019s exception and assignment of error number 5.\n\u201cA. He said, \u2018run, Doug, Ben is going to kill us.\u2019\n\u201cMr. Lowe: Objection.\n\u201cThe Court: Ask him questions.\n(Resume Narrative Form:)\n\u201cI heard somebody say something to me. As a result of what I heard I started running. I ran out the road toward the truck. ... I was running from Ben Crump, my brother. . . .\u201d\nThe record indicates that each time Solicitor Lowe objected the court\u2019s response was to direct the witness (defendant) not to tell what Dale had said. In disregard of the court\u2019s instruction, defendant proceeded to testify that Dale had said, \u201crun, Doug, Ben is going to kill us.\u201d Again, when Solicitor Lowe objected, the court\u2019s response was a direction (presumably to defendant\u2019s counsel) to ask questions. So far as the record shows, Solicitor Lowe made no motion to strike the answer given by defendant. Nor does' it appear that the court instructed the jury to disregard defendant\u2019s testimony with reference to what Dale had said. Moreover, the record leaves in doubt whether defendant\u2019s trial counsel interposed any objection whatever to the attempt by the court to prevent defendant from testifying to what Dale had said. The quoted language indicates that \u201cDefendant\u2019s Exception and Assignment of Error Number Five\u201d were incorporated simultaneously in the record when the case on appeal was prepared.\nIt seems probable the trial judge when he cautioned defendant not to tell what Dale had said was then unaware of the nature and content of any particular statement made by Dale. This would seem to explain why, after the testimony as to Dale\u2019s statement was given, the court took no action to strike the statement and to instruct the jury to disregard it in their deliberations.\nSince the testimony was given in the presence of the jury, and since the jury was given no instruction to disregard it, it seems clear that defendant was not prejudiced by the general cautions of the court to defendant to tell what happened rather than what somebody else said.\nDefendant assigns as error the court\u2019s failure to include involuntary manslaughter as a permissible verdict and to instruct the jury with reference to the distinction between manslaughter and involuntary manslaughter. This assignment is insubstantial. None of the evidence effords a basis for a verdict of guilty of involuntary manslaughter.\nDefendant excepted to and assigned as error the denial of his motion at May 1970 Session for a continuance until the August 1970 Session. According to the record before us, the motion and affidavit discussed below constitute the only matters before the court when the motion for continuance was under consideration.\nThe unverified motion by Mr. Walden, \u201c (t) he undersigned attorney of record for the defendant,\u201d set forth inter alia that defendant\u2019s defense to the pending murder charge against him was \u201cexpected to be self-defense\u201d; that defendant had recently told him that Dale Crump, defendant\u2019s brother, was an eyewitness ; that defendant told him he did not know what Dale would testify but expected him to testify \u201cthat the deceased was advancing on the defendant with a knife\u201d; that he (Walden) had not seen or heard from defendant since the March 1970 Session; that defendant had furnished him \u201cno forwarding address or other information\u201d as to how to contact him and prepare his defense; and that he (Walden) believed that Dale Crump was \u201ca necessary witness to properly conduct the trial of this case in behalf of the defendant.\u201d\nAn affidavit of defendant set forth inter alia that his brother, Dale Crump, was an eyewitness to the shooting; that he had lived at 232 Putnam Street, Shelby, N. C., but had moved; that he did not know Dale\u2019s new address but believed he lived in Shelby and worked in Charlotte; that he had not contacted Mr. Walden since the March 1970 Session and did not inform him that Dale \u201cwas desired for his defense until approximately 3:30 p.m. on Tuesday, May 19,1970\u201d; that he expected Dale to testify that, \u201con the date of the alleged slaying,\u201d he heard Ben say \u201cthat he was going\u2019 to kill this defendant\u201d; that since the March 1970 Session he had resided at Linville Falls, North Carolina; and that he had not furnished Mr. Walden \u201cany facts or other evidence about his defense since said time (March 1970 Session) and (had) not contacted him in any manner until the present session of this court commenced.\u201d\nThese additional facts are noted: (1) The May 1970 Session convened on May 11, 1970; and (2) it does not appear that a subpoena was issued for Dale Crump.\nAs stated by Justice Sharp in State v. Phillip, 261 N.C. 263, 267, 134 S.E. 2d 386, 390: \u201cEmployment of counsel does not excuse an accused from giving proper attention to his case; he has the duty to be diligent in his own behalf.\u201d Evidence of an unexplained failure to communicate with his counsel or to locate Dale Crump and arrange for him to be present for the trial shows an utter lack of diligence on the part of defendant.\n\u201cA motion for a continuance is addressed to the sound discretion of the trial judge and his ruling thereon is not reviewable in the absence of manifest abuse of discretion.\u201d 7 Strong, N. C. Index 2d, Trial \u00a7 3. Under the circumstances stated, there is no evidence that the denial of the motion for a continuance constituted an abuse of discretion.\nLastly, defendant assigns as error the denial as a matter of law of his \u201cMotion for New Trial.\u201d\nThe verdict was returned, the judgment was pronounced and the appeal entries were made on May 21, 1970. On the same date, defendant was adjudged an indigent. On May 22, 1970, Mr. Owens, his present counsel, was appointed to represent defendant in perfecting his appeal.\nOn June 3, 1970, defendant, represented by Mr. Owens, filed in the Superior Court of Rutherford County a \u201cMotion for New Trial,\u201d supported by affidavits of Dale Crump and of Russell Duncan. The affidavit of Dale Crump sets forth with particularity the events preceding, at the time of and subsequent to the shooting. Suffice to say, the facts set forth, if accepted, were quite favorable to defendant. Russell Duncan, in his affidavit, states: \u201cThat he is a deputy sheriff of Rutherford County, North Carolina; that on November 30, 1969, he went to a house located on the Duncan\u2019s Creek Road in Duncan\u2019s Creek Township, Rutherford County, North Carolina, about a quarter of a mile from Tom Toney\u2019s house, along with other officers and made an investigation of the shooting of Ben Crump; that he found a .22 automatic rifle near the steps of the house; that said rifle was twisted and bent; that there was blood on the porch of the house; and that there was blood on the rifle barrel and on the rifle stock. That the affiant has said rifle in his custody; that the said affiant was not called to testify on behalf of the defendant Douglas Crump when said defendant was tried at the May 1970 Term of Rutherford County Superior Court Division of the General Court of Justice.\u201d This affidavit of a deputy sheriff tends to corroborate strongly the testimony of defendant and of Howard Crump at trial and of Dale Crump\u2019s affidavit to the effect that Ben Crump, the deceased, a short time before the shooting occurred, had beaten Howard Crump with a rifle at or near the porch with such force as to leave a trail of blood on the porch and blood on the rifle barrel and rifle stock.\nIt was agreed by the solicitor and by Mr. Owens that the motion would be heard by Judge Snepp, the trial judge, at the June 1970 Session of the McDowell Superior Court.\nOn June 10, 1970, Judge Snepp denied defendant\u2019s motion as a matter of law on the ground \u201cthat notice of appeal . . . having been duly given, the Superior Court is now without jurisdiction to entertain a motion for a new trial on the grounds of newly discovered evidence.\u201d\nWe take judicial notice of the fact that the two-week session of Rutherford Superior Court which commenced on May 11, 1970, had terminated by limitation prior to the filing of the \u201cMotion for New Trial.\u201d\n\u201cMotion for new trial for newly discovered evidence may be made in the trial court only at the trial term, or, in case of appeal, at the next succeeding term of the Superior Court after affirmance of the judgment by the Supreme Court.\u201d 3 Strong, N. C. Index 2d, Criminal Law \u00a7 131. Decisions cited in support of this well-established rule include the following: State v. Casey, 201 N.C. 620, 161 S.E. 81; State v. Edwards, 205 N.C. 661, 172 S.E. 399; State v. Gibson, 229 N.C. 497, 50 S.E. 2d 520; State v. Morrow, 262 N.C. 592, 138 S.E. 2d 245. Moreover, when the \u201cMotion for New Trial\u201d was made, the May 1970 Session had expired by limitation; and defendant\u2019s appeal from the judgment on the verdict had removed the case from the superior court and had transferred jurisdiction to the Supreme Court. 1 Strong, N. C. Index 2d, Appeal and Error \u00a7 16, p. 138, and cases cited.\nUnder the circumstances, Judge Snepp rightly denied the \u201cMotion por New Trial\u201d as a matter of law on the ground that jurisdiction then vested in the Appellate Division. Of course, the matters set forth in the affidavits of Dale Crump, of Russell Duncan and of Mr. Walden (referred to below) will be for consideration by the presiding judge if a motion for new trial on the ground of newly discovered evidence is made at the next session of the Superior Court of Rutherford County subsequent to the filing of this opinion.\nWe take notice of the fact that the record also contains an affidavit by Mr. Walden. Although not dated, the record indicates it was sworn to on August 6, 1970. This affidavit, although not pertinent to the question before us, sets forth inter alia the following. Walden was employed by defendant to represent him at the preliminary hearing on December 11, 1969; that he did so and, pursuant to their agreement, was paid one hundred dollars for this appearance, which included his successful effort to obtain a reduction in defendant\u2019s appearance bond; that, under their agreement, this ended Walden\u2019s employment by defendant; that defendant was advised by Walden that Walden would not represent him in the trial in the superior court unless and until he was paid a fee of one thousand dollars; that defendant did not reemploy Walden and Walden received no additional compensation; that Walden had not seen defendant from the return of the indictment at March 1970 Session until the May 1970 Session; that he appeared for defendant at the May 1970 Session because the court, in the absence of an order permitting him to withdraw as counsel, required that he do so; and that, on account of his lack of contact with defendant and the fact that he had not been reemployed, Walden went to trial without opportunity and information to prepare defendant\u2019s defense.\nPertinent to defendant\u2019s seeming lack of responsibility and diligence in arranging and preparing for the defense of his case, it is noted that defendant testified at trial that, although he \u201cwent to the 7th grade in school,\u201d he \u201ccannot read and . . . cannot write.\u201d\nIn view of what appears now to have been a misunderstanding between attorney and client which resulted in inadequate preparation for trial, it seems appropriate to say: Independent of his obligations to his client, an attorney, having accepted employment by a defendant and having represented him before the court, is obligated to the court to continue to do so unless and until, after notice to the client, the court permits him to withdraw for cause or by reason of defendant\u2019s consent to the termination of his employment. If employment is accepted for a specific limited purpose, the facts in connection therewith should be fully disclosed (preferably in writing) to the court.\nSince we find no legal error in the trial below, the verdict and judgment will not be disturbed. Whether defendant should be awarded a new trial on account of the facts set forth in the affidavits of Dale Crump, Russell Duncan and Mr. Walden, his original counsel, will be for consideration, together with all other evidence that may be adduced, by the presiding judge at the next session of superior court after the filing of this opinion if a motion therefor is made in apt time.\nNo error.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General Vanore for the State.", "Hollis M. Owens, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DOUGLAS CRUMP\nNo. 98\n(Filed 20 January 1971)\n1. Homicide \u00a7 14\u2014 presumptions arising from intentional use of deadly weapon\nWhen the jury finds from the State\u2019s evidence beyond a reasonable doubt that the defendant intentionally shot the deceased with a shotgun and that the shotgun wound so inflicted proximately caused his death, the presumptions arise that the killing was unlawful and that it was done with malice; nothing else appearing, defendant is guilty of murder in the second degree.\n2. Homicide \u00a7 21\u2014 homicide prosecution \u2014 sufficiency of evidence\nIn a prosecution charging defendant with the shotgun slaying of his brother, the issue of defendant\u2019s guilt of second-degree murder or of manslaughter was properly submitted to the jury.\n3. Criminal Law \u00a7 176\u2014 motion to dismiss \u2014 review of evidence\nAll admitted evidence is for consideration when passing upon a motion to dismiss as in case of nonsuit.\n4. Homicide \u00a7 16\u2014 admissibility of dying declaration\nTestimony in a homicide prosecution that the victim of a gunshot wound stated, during his ride to the hospital, that the defendant had shot him, held admissible as a dying declaration of the victim, where there were findings, supported by evidence, (1) that the victim was in actual danger of death from the gunshot wound and knew it and (2) that the victim, upon arrival at the hospital, was dead from the gunshot wound.\n5. Criminal Law \u00a7 76\u2014 admissibility of confession \u2014 voir dire \u2014 insufficiency of evidence to support finding of fact \u2014 harmless error\nAlthough there was no evidence on voir dire to support the trial court\u2019s finding of fact that the defendant \u201cwas advised that if he could not afford a lawyer, one would be appointed for him,\u201d testimony relating to defendant\u2019s statement to officers that he had shot the deceased was nonetheless competent, where (1) defendant was not under arrest or in custody when he made the statement; (2) defendant himself testified on the trial that he had shot the deceased in self-defense; and (3) there was sufficient evidence, independent of defendant\u2019s statement, that the defendant intentionally shot the deceased.\n6. Criminal Law \u00a7 75\u2014 advising of rights \u2014 non-indigent defendant\nA defendant who is able to select and compensate counsel need not be advised in respect of the rights of an indigent.\n7. Criminal Law \u00a7 169\u2014 admission of State\u2019s evidence \u2014 similar testimony by defendant\nExceptions by the defendant to evidence of a State\u2019s witness will not be sustained when the defendant or his witness testified, without objection, to substantially the same facts.\n8. Criminal Law \u00a7 73\u2014 admissibility of hearsay testimony\nIf a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay.\n9. Homicide \u00a7 9\u2014 basis of self-defense\nThe plea of self-defense rests upon necessity, real or apparent.\n10. Homicide \u00a7 9\u2014 plea of self-defense \u2014 reasonableness of defendant\u2019s belief or apprehension of harm\nIn passing upon whether defendant, when he shot the deceased, believed it was necessary to do so to protect and defend himself from death or great bodily harm and had reasonable grounds for that belief, the reasonableness of defendant\u2019s belief or apprehension must be judged by the facts and circumstances as they appeared to him when the shooting occurred.\n11. Homicide \u00a7 19; Criminal Law \u00a7 73\u2014 evidence competent on question of self-defense \u2014 hearsay evidence\nIn a prosecution charging defendant with the shotgun slaying of his brother, defendant\u2019s testimony that another brother shouted to him, \u201cRun, Doug, Ben is going to kill us,\u201d is admissible to establish defendant\u2019s plea of self-defense, notwithstanding such testimony was hearsay.\n12. Criminal Law \u00a7 170\u2014 harmless effect of trial court\u2019s remarks on defendant\u2019s testimony\nDefendant\u2019s testimony, which was competent on the question of self-defense, that someone had told him that his brother was going to kill him, held not prejudiced by the trial court\u2019s responses directing the defendant not to tell what another person said, where defendant was ultimately permitted to give such testimony in the presence of the jury, and the jury was not instructed to disregard the testimony.\n13. Homicide \u00a7 30\u2014 failure to submit instruction on involuntary manslaughter\nTrial court\u2019s failure to include involuntary manslaughter as a permissible verdict in a homicide prosecution and to instruct the jury with reference to the distinction between manslaughter and involuntary manslaughter, held not erroneous when none of the evidence affords a basis for a verdict of guilty of involuntary manslaughter.\n14. Criminal Law \u00a7 91\u2014 motion for continuance \u2014 time to locate missing witness\nDefendant\u2019s motion for the continuance of his trial from May to August on the ground that he was unable to locate the whereabouts of his brother, who was expected to testify in support of defendant\u2019s plea of self-defense to a homicide charge, held properly denied by the trial court in its discretion, where the evidence in support of defendant\u2019s motion revealed his lack of diligence in failing to communicate with his counsel prior to the May Session and in failing to locate his brother.\n15. Criminal Law \u00a7 91\u2014 motion for continuance addressed to the discretion of the trial judge\nA motion for a continuance is addressed to the sound discretion of the trial judge, and his ruling thereon is not reviewable in the absence of a manifest abuse of discretion.\n16. Criminal Law \u00a7 131\u2014 new trial for newly discovered evidence \u2014 jurisdiction of trial court\nDefendant\u2019s motion for new trial for newly discovered evidence, which was made after the expiration of the session of court in which he was tried and after his appeal from the judgment of conviction, was properly denied by the trial court on the ground that it lacked jurisdiction to hear the motion.\n17. Attorney and Client \u00a7 5\u2014 obligation of attorney in a criminal case\nIndependent of his obligations to his client, an attorney, having accepted employment by a defendant and having represented him before the court, is obligated to the court to continue to do so unless and until, after notice to the client, the court permits him to withdraw for cause or by reason of defendant\u2019s consent to the termination of his employment.\nAppeal by defendant from Snepp, J., May 1970 Session of Rutherford Superior Court, transferred for initial appellate review by the Supreme Court under an order entered pursuant to G.S. 7A-31 (b) (4).\nCriminal prosecution on an indictment which charged, in the form prescribed by G.S. 15-144, that defendant, on November 30, 1969, \u201cfeloniously, wilfully, and of his malice aforethought, did kill and murder Walter Ben Crump,\u201d etc.\nAfter a preliminary hearing on December 11,1969, at which defendant was represented by Carroll W. Walden, Jr., Esq., privately-retained counsel, the District Court found probable cause and set bond ($5,000.00) for defendant\u2019s appearance at the next session of Rutherford Superior Court. The indictment was returned at March 1970 Session. When the case was called for trial at May 1970 Session, defendant, through Mr. Walden, moved for a continuance. The court denied this motion and defendant excepted. The case then proceeded to trial on defendant\u2019s plea of not guilty, at which time defendant was represented by Mr. Walden.\nThe solicitor announced that the State would not place defendant on trial for murder in the first degree, but would place him on trial for second degree murder or manslaughter, as the evidence might warrant.\nEvidence was offered by the State and by defendant.\nThe State\u2019s evidence, summarized except where quoted, tends to show the facts set forth below.\nSue Toney and Walter Ben Crump (Ben), by whom Sue had two children, had been living together for three years and three months. On November 30, 1969, they were living with Sue\u2019s parents, Mr. and Mrs. Tom Toney, on Duncan\u2019s Creek Road, Rutherford County. In addition to the family home, there was an old abandoned house on Mr. Toney\u2019s property. In Sue\u2019s words: \u201cThere was no electricity or anything in the house, but there was a bed and table and stuff that wasn\u2019t any good.\u201d Ben stayed there at night sometimes. An old dirt road, which crossed a bridge, led from the back of the Toney home to the abandoned house.\nOn November 30, 1969, about 2:00 a.m., Sue heard a shot and Ben\u2019s voice. Leaving her father\u2019s home, she went out the dirt road and found Ben lying in the road a few feet from the bridge. His head was on the shoulder of the road. His legs and body were in the road. There was blood all over his leg around the thigh and on the road. Using the bottom part of her gown, Sue tried to tie a tourniquet about Ben\u2019s leg \u201cup above where he was hurt.\u201d\nBen was put in Mr. Toney\u2019s car. Mr. Toney started to drive but was \u201cshook up so he couldn\u2019t hardly drive.\u201d They went to the home of Jim Gamble, Sue\u2019s brother-in-law. This was \u201ca little over a mile\u201d from where Ben was \u201cpicked up.\u201d Then Jim Gamble took over the driving in the Toney car. En route to the Rutherford Hospital, they met L. D. Davis, a member of the State Highway Patrol, on RPR #1007 \u201cjust north of Sunshine.\u201d After talking briefly with Davis, they proceeded to Washburn\u2019s Store where Ben was transferred to the Rescue Squad ambulance. The ambulance proceeded directly to the hospital in Rutherfordton. Upon arrival there at 3:45 a.m., Ben was dead.\nAn expert witness, Dr. Harry Hendricks, who examined Ben\u2019s body shortly after its arrival at Rutherford Hospital, testified that in his opinion Ben died from bleeding caused by a large wound which \u201cwas across the large blood vessel in the upper thigh,\u201d inflicted by a shotgun; and that, in his opinion, Ben would not have died had he received medical attention \u201cwithin 30 minutes or so\u201d from the time he was shot.\nSue was with Ben, first in the Toney car and later in the ambulance. Sue testified Ben told her that Douglas, his brother, had shot him; that he made these statements while lying in the back of the Toney car, with his head in Sue\u2019s lap. Over objections by defendant, the statements attributed to Ben by Sue were admitted as dying declarations.\nWhen Sue was going from her father\u2019s house to Ben, she met defendant (Ben\u2019s brother) coming out the road towards her father\u2019s house. She and Howard Crump, Ben\u2019s oldest brother, got to where Ben was lying in the road about the same time.\nNear the same place on RPR #1007, \u201cjust north of Sunshine,\u201d where he had stopped the Toney car, and about an hour and a half later, Patrolman Davis met and stopped a pickup truck operated by Dale Crump, in which Dale Crump, Howard Crump, Douglas Crump, and \u201ctwo girls\u201d Davis did not know, were riding. A twelve-gauge double-barreled shotgun was in the truck. Over defendant\u2019s objections, Patrolman Davis was permitted to testify that defendant stated, referring to the shotgun in the truck, that \u201cthat was the gun he shot Ben Crump with and that was the shell he shot him with.\u201d This was \u201cthe only one in the gun.\u201d Patrolman Davis took possession of the shotgun and put it in his patrol car. Defendant was put in the car of one of the deputies. Later, Patrolman Davis turned over the shotgun to the Sheriff\u2019s Department at the County Jail.\nEvidence offered by defendant consists of the testimony of defendant, of Howard Crump, of Betty Crump, defendant\u2019s wife, and of Ruth Carpenter, a sister of the Crump brothers.\nMrs. Carpenter and Betty Crump testified in substance that Ben had a general reputation for violence and fighting.\nWith reference to events prior and subsequent to the shooting, Betty Crump testified in substance as follows: Dale Crump and his wife, Judy Crump, had come over from Shelby to spend the weekend with Douglas and Betty in the Mall Walker residence in Sunshine. They arrived about 5:00 p.m. About 6:30 or 7:00 p.m., \u201cit was already getting dark,\u201d Douglas and Dale left in Dale\u2019s1 pickup truck stating they were going over to see Ben for a little while. Douglas took his shotgun, saying he was going to show it to Ben. About 2:00 a.m.,. after the shooting, Dale returned in the pickup truck. Betty and Judy had not gone to bed but were \u201cwaiting for the men to get back.\u201d Betty and Judy got in the truck with Dale. At that time she saw the shotgun in Dale\u2019s truck. Dale drove the truck (approximately six miles) to the Toney house. Douglas was standing \u201cat the porch.\u201d When he saw the truck come up the road, Douglas walked to the gravel road and stopped. Betty got out and went to him. Douglas was crying and he was nervous and shaking all over. In Betty\u2019s words, \u201cBen had already been taken to the doctor . . . .\u201d\nEvidence offered by defendant, which does not contradict but complements the State\u2019s evidence, tends to show the facts narrated in the following numbered paragraphs.\n1. It was approximately 500 yards from Duncan\u2019s Creek Road to the abandoned house. The dirt road leading from the Toney home to the old abandoned house behind it was old, narrow, little-used and bordered with bushes. The bridge was about midway between the two houses.\n2. In one of the three rooms of the abandoned house there were an old bedstead, a table and a fireplace. The only light, inside or outside of the abandoned house, was from the fire in the fireplace.\n3. Howard, aged 38, was the oldest of the four Crump brothers. He lived in a cabin at the end of Duncan\u2019s Creek Road, about three miles from the scene of the shooting. Ben, aged S3, was next. He was six feet and three inches tall and weighed about 170 pounds. He lived on the Toney premises, often staying at nights in the abandoned house. Dale, about 24 years old, then lived in Shelby with Judy, his wife. Douglas, aged 21, was five feet tall. He lived with his wife, Betty, in the home of Mall Walker, his father-in-law, in Sunshine, about six miles from the scene of the shooting.\nUncontradicted evidence tends to show the four Crump brothers were the only persons present preceding and at the time of the shooting. Testimony as to Ben\u2019s dying declarations is set forth in the opinion. Dale was not present at the trial. Douglas and Howard were the only witnesses who testified as to what occurred preceding and at the time of the shooting.\nDouglas testified in substance as follows. Douglas was at the abandoned house during the afternoon of Saturday, November 29, 1969, at which time Ben tried to pick a fight with him. Later he left the Walker home in Sunshine in Dale\u2019s truck. At that time, Douglas put his shotgun, which had been in the Walker house, in the truck. He was taking it along to show it to Ben; also, Dale wanted to try it out. They went to the abandoned house. When Ben asked to see the shotgun, Dale went to the truck, brought it into the house where all looked at it. Later, all four (Howard, Ben, Dale and Douglas) left the abandoned house in Dale\u2019s truck and went to a place on Highway #18 where they got \u201csome more beer and came back.\u201d Dale was driving. The shotgun was left in the house, lying on the table. On the way back to the old house, \u201cBen wanted to start a fight,\u201d and at one point Douglas got out of the truck and ran from him. All four had been drinking. Douglas had been drinking beer. Ben had been drinking \u201cwhite\u201d liquor. During the evening, on several occasions, Howard had stopped Ben from beating Douglas. Howard was on the porch when Douglas1 went into the abandoned house and told Dale he was leaving. About this time, Ben picked up a .22-caliber rifle, went to the front door with it and hit Howard over the head with it. While Ben was wrestling with Howard in the yard and beating him, Douglas started out the road towards the truck. Dale tried to stop Ben. Ben knocked Dale down. Dale called, \u201crun, Doug, Ben is going to kill us.\u201d Ben was running towards Douglas saying that he was going to kill him. Douglas \u201chollered as loud as (he) could 3 times and said Stop and he didn\u2019t.\u201d When Douglas fired the gun, Ben was coming on him. Douglas testified that Ben told him, \u201cI\u2019m going to kill you,\u201d and that he (Douglas) \u201chad to do something.\u201d After the shooting, Douglas laid the shotgun on the bridge. Howard sent Douglas to Mr. Toney to request him to take Ben to the hospital. Douglas went to the home of Charles Greene, who lived some 200 yards from where Ben had fallen, \u201cto see if (he) could get Ben a way to the hospital.\u201d Greene refused. After he returned, Mr. Toney drove his car out the road. The three brothers put Ben in the Toney car. Douglas, who was drunk or had been drinking, tried to get Mr. Toney from under the steering wheel so he could drive the Toney car. Mr. Toney refused and drove the car from the scene of the shooting towards Ruther-fordton. Sue and Ben were in the back seat, Ben\u2019s head in Sue\u2019s lap. Douglas sat alone on Toney\u2019s porch until Dale returned in the truck with Betty and Judy.\nDouglas testified he talked to a Mr. Russell Duncan who asked him if he shot Ben and that he (Douglas) told Duncan, \u201cYes, in self-defense.\u201d Douglas also testified that Duncan was in the courtroom while he (Douglas) was testifying.\nHoward testified in substance as1 follows: Ben struck him across the top of his head with a rifle. The blow knocked him from the two-foot high porch. He fell to the ground, bloody and unconscious. He regained consciousness when he heard a gun fire. He heard Ben hollering, \u201cCome over here and help me.\u201d Sue Toney, in response to Ben\u2019s call, came running to Ben. He (Howard) corded Ben\u2019s leg using a part of Sue\u2019s gown and twisting it with a stick. \u201cIt was so dark that (he) had to light (his) lighter to see where the bleeding was coming from.\u201d There was blood on his own face which he had to keep wiping off. Under these circumstances, he did the best he could to stop Ben\u2019s bleeding. He remained in the vicinity of the Toney home until Dale, accompanied by Betty and Judy, returned from the Walker house in Sunshine. He and Douglas got in the truck. The five were on their way to the hospital when stopped near Sunshine by Patrolman Davis, Sheriff Huskey and his deputies. The officers arrested Howard, Dale and Douglas and took them to the Rutherford County Jail.\nThe jury returned a verdict of guilty of manslaugher; and, upon this verdict, the court pronounced judgment that defendant be confined in the State\u2019s prison for not less than seven nor more than ten years.\nDefendant, through his trial counsel, gave notice of appeal. On May 21, 1970, defendant executed an affidavit of indigency. The court, upon finding that defendant was an indigent, appointed Hollis M. Owens, Jr., Esq., to represent defendant and perfect his appeal to the Court of Appeals.\nAttorney General Morgan and Assistant Attorney General Vanore for the State.\nHollis M. Owens, Jr., for defendant appellant." }, "file_name": "0573-01", "first_page_order": 593, "last_page_order": 611 }