{ "id": 8572293, "name": "STATE OF NORTH CAROLINA v. MARY WINECOFF", "name_abbreviation": "State v. Winecoff", "decision_date": "1972-01-28", "docket_number": "No. 11", "first_page": "420", "last_page": "426", "citations": [ { "type": "official", "cite": "280 N.C. 420" } ], "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": "85 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610424 ], "opinion_index": 0, "case_paths": [ "/nc/241/0356-01" ] }, { "cite": "142 S.E. 2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574189 ], "opinion_index": 0, "case_paths": [ "/nc/264/0524-01" ] }, { "cite": "172 S.E. 2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561475 ], "opinion_index": 0, "case_paths": [ "/nc/276/0381-01" ] }, { "cite": "185 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "184 S.E. 2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571013 ], "opinion_index": 0, "case_paths": [ "/nc/279/0527-01" ] }, { "cite": "113 S.E. 2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620882 ], "opinion_index": 0, "case_paths": [ "/nc/252/0227-01" ] }, { "cite": "132 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573304 ], "opinion_index": 0, "case_paths": [ "/nc/260/0133-01" ] }, { "cite": "187 S.E. 785", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627328 ], "opinion_index": 0, "case_paths": [ "/nc/210/0496-01" ] }, { "cite": "157 S.E. 2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565553 ], "opinion_index": 0, "case_paths": [ "/nc/271/0576-01" ] }, { "cite": "120 S.E. 817", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "16 S.E. 332", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "111 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652154 ], "opinion_index": 0, "case_paths": [ "/nc/111/0695-01" ] }, { "cite": "85 S.E. 42", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "169 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658829 ], "opinion_index": 0, "case_paths": [ "/nc/169/0326-01" ] }, { "cite": "67 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "weight": 3, "opinion_index": 0 }, { "cite": "187 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653223 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/187/0022-01" ] }, { "cite": "126 S.E. 98", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "189 N.C. 15", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653379 ], "opinion_index": 0, "case_paths": [ "/nc/189/0015-01" ] } ], "analysis": { "cardinality": 620, "char_count": 12535, "ocr_confidence": 0.529, "pagerank": { "raw": 4.46765605076141e-08, "percentile": 0.28021440632253075 }, "sha256": "c18784c53954ee23bdd28ef5bf95ec5c79549fc313783205dcf25b74230a98d5", "simhash": "1:87a6f408223d7fd2", "word_count": 2177 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. MARY WINECOFF" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendant contends that the trial judge committed prejudicial error in failing to charge that the jury should receive the alleged dying declarations of Frank Winecoff, Jr., with caution.\nDefendant did not specifically request such instructions.\nIn the case of State v. Collins, 189 N.C. 15, 126 S.E. 98, it is stated:\nThe eleventh exception, which relates to the instruction pertaining to the alleged dying declarations of the deceased, is not tenable. We have held that the evidence as to these declarations was competent; and while the court might properly have told the jury to consider this evidence with due caution, the failure to do so in the absence of a special request will not be held for reversible error. We have repeatedly said that as to subordinate features or particular phases of the evidence proper request should be made for appropriate instructions. S. v. O\u2019Neal, 187 N.C. 22.\nDefendant cites and relies on the cases of State v. Williams, 67 N.C. 13, State v. Kennedy, 169 N.C. 326, 85 S.E. 42, and State v. Whitson, 111 N.C. 695, 16 S.E. 332, as authority to support his contention. These cases are distinguishable.\nThe case of State v. Williams, supra, contains the equivocal statement that \u201cSeveral eminent judges have felt it a duty to say that they [dying declarations] should be received with much caution, and that the rule which authorizes their admission should not be extended beyond the reasons which justify it.\u201d The quoted statement is dicta since the statement was directed only to the admissibility of dying declarations and to the reasons for receiving such declarations. The case did not consider or turn upon proper cautionary instructions to the jury. In each of the remaining cases cited by defendant a specific request was made for the cautionary instruction.\nWe conclude that when request is made for such instruction, the judge must instruct the jury to receive a dying declaration with caution. State v. Whitson, supra; State v. Kennedy, supra; State v. Williams, supra. Absent such specific request, it is not prejudicial error for the trial judge to fail to give a cautionary instruction as to dying declarations. State v. Collins, supra; State v. O\u2019Neal, 187 N.C. 22, 120 S.E. 817.\nThis assignment of error is overruled.\nDefendant assigns as error the admission into evidence of statements by the witness R. M. Faggart that on 24 October 1969 he sold her the single barrel 12-gauge shotgun which was marked State\u2019s Exhibit \u201cA.\u201d\nIt is well settled in this jurisdiction that in a criminal action any object having a relevant connection with the case is admissible in evidence. State v. Jarvett, 271 N.C. 576, 157 S.E. 2d 4.\nIn the case of State v. Macklin, 210 N.C. 496, 187 S.E. 785, it is stated: \u201cIt was competent to show the possession of a shotgun by defendant about the time of the homicide . ... \u201d State\u2019s Exhibit \u201cA\u201d was found in the woodpile at the Winecoff home with a discharged shell in it on the same day that deceased was shot. The testimony that defendant had purchased this very gun within a period of approximately six months was relevant and was properly admitted. Assuming, arguendo, that the evidence was erroneously admitted, defendant has failed to show that such error was prejudicial. The burden is on defendant not only to show error, but also to show that the error complained of affected the result of the trial adversely to her. State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364; State v. Mumford, 252 N.C. 227, 113 S.E. 2d 363.\nUnder the circumstances of this case the admission of the challenged evidence appears to favor defendant. This evidence shows that the gun sold to defendant was a single barrel gun. The eyewitness to the shooting testified that a double barrel gun was used to inflict the wounds. This evidence, particularly when considered with the trial judge\u2019s refusal to admit the shotgun into evidence, tends to create confusion in and prejudice to the State\u2019s case rather than defendant\u2019s.\nFor reasons stated, this assignment of error is overruled.\nDefendant next contends that the trial judge erred in his charge by expressing the opinion that defendant was the person who inflicted the fatal wound. She specifically points to the following portion of the charge:\nTo reduce the offense of voluntary manslaughter, the defense must satisfy you of three things from the evidence offered by the defendant, or evidence offered by the State: First; Did the defendant kill the deceased? Second: Did she kill him intentionally? Third: Did she kill him unlawfully in the heat of passion by reason of anger suddenly aroused, and before such time had elapsed for passion to subside and reason to resume sway and habitual control?\nPrior thereto the trial judge had charged:\nUnder our system of justice when a defendant pleads not guilty, he or she is not required to prove his or her innocence, they are presumed to be innocent. The State must prove to you that the defendant is guilty beyond a reasonable doubt.\nThe State must prove beyond a reasonable doubt that the defendant intentionally shot, in this case, shot Frank Winecoff, Jr., with a deadly weapon and that Frank Wine-coff died as a natural and probable result of such act.\nIn his final mandate to the jury the Judge instructed as follows:\nI charge you, ladies and gentlemen of the jury, if you find from the evidence and beyond a reasonable doubt that on or about the 19th day of April, 1970, the defendant, Mary Winecoff, intentionally shot Frank Winecoff, Jr., with a deadly weapon, to wit, a shotgun; and that Frank Winecoff\u2019s death was a natural and probable result of the shot or act of Mary Winecoff, it would be your duty to return the verdict of guilty of second degree murder unless from the evidence you are satisfied that she killed, that is Mary Winecoff killed Frank Winecoff, Jr., in the heat of a sudden passion, which was produced by the acts of Frank Winecoff which had the natural tendency to produce said passion in the defendant, and this passion continued until she killed Frank Winecoff, in this case it would be your duty to return the verdict of guilty of manslaughter.\nIf the State has failed to prove from the evidence beyond a reasonable doubt that the defendant intentionally shot and killed Frank Winecoff or that Frank Winecoff\u2019s death was a natural and probable result of Mary Winecoff\u2019s act, it would be your duty to find the defendant not guilty.\nSo in this case you may return one of three verdicts. You may find the defendant guilty of second degree murder, manslaughter, or not guilty.\n\u201cThe judge\u2019s words may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous impressions may be inferred.\u201d State v. Alexander, 279 N.C. 527, 184 S.E. 2d 274.\nWhile we do not approve the interrogatory form of the charge challenged by defendant, we do not find in it an expression of opinion prejudicial to defendant. A contextual reading of the entire charge reveals a clear statement of the law regarding second degree murder and manslaughter, properly applied to the facts of the case. State v. Rummage, ante, 51, 185 S.E. 2d 221; State v. Barrow, 276 N.C. 381, 172 S.E. 2d 512; State v. Todd, 264 N.C. 524, 142 S.E. 2d 154; State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322.\nNor do we find merit in defendant\u2019s contention that the trial judge erroneously submitted the charge on manslaughter to the jury. There was ample evidence to support a verdict of manslaughter.\nA careful examination of this entire record discloses no prejudicial error.\nNo error.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General Icenhour for the State.", "James C. Davis and Clarence E. Horton, Jr., for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARY WINECOFF\nNo. 11\n(Filed 28 January 1972)\n1. Homicide \u00a7 16\u2014 instructions \u2014 dying declarations \u2014 consideration by by jury\nIt is not prejudicial error for the trial judge to fail to instruct the jury that dying declarations should be considered with caution absent a request for such an instruction.\n2. Homicide \u00a7 15\u2014 testimony that witness sold shotgun to defendant\nIn this homicide prosecution, the trial court properly admitted testimony that about six months prior to the crime the witness had sold defendant a single barrel 12-gauge shotgun which was found in a woodpile at defendant\u2019s home; even if erroneously admitted, such testimony was not prejudicial to defendant, but tended to prejudice the State\u2019s case, since an eyewitness testified that a double barrel shotgun was used in the shooting and the trial court refused to admit the single barrel shotgun in evidence.\n3. Homicide \u00a7 24\u2014 instructions \u2014 reduction of crime to manslaughter \u2014 burden on defendant \u2014 expression of opinion\nThe trial court in this homicide prosecution did not express the opinion that defendant was the person who inflicted the fatal wound in its instructions upon the burden of defendant to reduce the offense to voluntary manslaughter.\nAppeal by defendant from Gambill, J., 1 October 1970 Session of Cabarrus Superior Court.\nDefendant was charged in a bill of indictment with the murder of Frank Winecoff, Jr. The State elected to try her for the lesser included offense of second degree murder. Defendant entered a plea of not guilty.\nThe State\u2019s evidence, except where quoted, is summarized as follows:\nRobert Roseboro testified that he went to Frank Wine-coff\u2019s home about 10 o\u2019clock a.m. on Sunday, 19 April 1970. He went into the kitchen, where he sat and talked to Frank for about thirty minutes. He testified: \u201cI did not see Mary Winecoff at the time, she was in the back room. I was there about one-half hour before I saw her. She came out of the back room into the room I was in. She was arguing with Frank, just fussing at him. She did not say anything when she first came out; she went back in and came out again and had a gun \u2014 a double barrel, what I call a shotgun. I do not know what she was quarreling at her husband about; they had been out that morning and came back in, and I was not there. When she came back out of the room with the shotgun, she just told him she\u2019d blow his brains out and throwed it up at him and shot him. He was still in the kitchen; they were about as far apart as you and me \u2014 I do not know how far in feet. She shot one time. She did not say a thing. He was sitting down. Frank Winecoff, Jr., did not say a thing. I went next door and told the people to call up the ambulance and the cops because he was shot. Some officers arrived; Mr. Atwood was one.\u201d\nCaptain Ray Atwood of the Cabarrus Sheriff\u2019s Department, testified that he went to the Winecoff home on 19 April 1970 pursuant to a call received about 12:15 p.m. When he arrived, Frank Winecoff was lying on the kitchen floor and defendant was standing in the living room about 12 feet away. We quote an excerpt from Captain Atwood\u2019s direct testimony:\nWhen I arrived at the Winecoff home Frank Winecoff, Jr., was alive. He made a statement to me at that time.\nQ. What statement did he make?\nObjection Overruled Exception\nException No. 1.\nWhen I went in Frank was lying on the kitchen floor partially under the table beside a turned over chair. I spoke and Frank said, \u201cMr. Atwood, please help me, I\u2019m dying.\u201d I asked what happened. He said, \u201cMary shot me,\u201d no, he said, \u201cMy wife shot me.\u201d I told him that we had an ambulance on the way, to lay still, that the more he moved, the more he hied. He was lying on his right side and he had a hole about two inches across under his ribs. Some of the flesh was out over his clothes. He was bleeding a good bit at that time.\nOn cross-examination Captain Atwood testified that defendant Winecoff was \u201cpretty high\u201d and that she first told him her husband had not been shot, and that he was sick. She later said that Robert Roseboro shot him.\nCaptain Atwood identified a single barrel shotgun as the gun found in a woodpile at the Winecoff home.\nR. M. Faggart testified, over objection, that on 24 October 1969 he sold to Mary Winecoff the 12-gauge single barrel shotgun marked as Defendant\u2019s Exhibit \u201cA.\u201d The court refused to admit the shotgun into evidence.\nDr. William J. Reeves testified that on 19 April 1970 he performed an autopsy on the body of Frank Winecoff, Jr., and that in his opinion Frank Winecoff, Jr., died as a result of wounds caused by shotgun pellets which penetrated his stomach and liver.\nDefendant offered no evidence.\nThis case is before us pursuant to our general referral order effective 1 August 1970.\nAttorney General Morgan and Assistant Attorney General Icenhour for the State.\nJames C. Davis and Clarence E. Horton, Jr., for defendant." }, "file_name": "0420-01", "first_page_order": 440, "last_page_order": 446 }