{ "id": 8559946, "name": "STATE OF NORTH CAROLINA v. JIMMY L. EVERETTE", "name_abbreviation": "State v. Everette", "decision_date": "1973-10-10", "docket_number": "No. 23", "first_page": "81", "last_page": "87", "citations": [ { "type": "official", "cite": "284 N.C. 81" } ], "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": "82 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599102 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0332-01" ] }, { "cite": "125 S.E. 2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C., 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565672 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0092-01" ] }, { "cite": "139 S.E. 2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571759 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0533-01" ] }, { "cite": "178 S.E. 557", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "opinion_index": 0 }, { "cite": "207 N.C. 873", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629466 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/nc/207/0873-01" ] }, { "cite": "30 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600711 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0304-01" ] }, { "cite": "44 S.E. 2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "228 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623080 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/228/0068-01" ] }, { "cite": "72 S.E. 2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "236 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625000 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/236/0295-01" ] }, { "cite": "174 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563418 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0714-01" ] }, { "cite": "189 S.E. 2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575634 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0564-01" ] }, { "cite": "196 S.E. 2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558822 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0354-01" ] }, { "cite": "163 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560020 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0295-01" ] }, { "cite": "187 S.E. 2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573092 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0622-01" ] }, { "cite": "166 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558305 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0198-01" ] }, { "cite": "183 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569206 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0398-01" ] }, { "cite": "173 S.E. 2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561670 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0430-01" ] }, { "cite": "156 S.E. 2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564082 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0379-01" ] }, { "cite": "183 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569568 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0447-01" ] } ], "analysis": { "cardinality": 688, "char_count": 15154, "ocr_confidence": 0.549, "pagerank": { "raw": 8.670667679162872e-07, "percentile": 0.977270296453577 }, "sha256": "5ee55a68ea831962b4be31743e20fc203b3fda737bccd304bc2fcdbb06be8cd8", "simhash": "1:a3dc702adf3d1470", "word_count": 2638 }, "last_updated": "2023-07-14T18:23:00.028129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JIMMY L. EVERETTE" ], "opinions": [ { "text": "MOORE, Justice.\nDefendant first assigns as error the failure of the trial court to direct a verdict for defendant at the close of the State\u2019s evidence, at the close of defendant\u2019s evidence, and at the close of all the evidence. In support of this assignment, defendant summarizes a portion of the evidence that stresses his plea of self-defense and contends that because of this evidence the State did not meet the burden of proof required for submission of the case to the jury.\nIn a criminal case the proper motion to test the sufficiency of the State\u2019s evidence to carry the case to the jury is a motion to dismiss the action or a motion for judgment as in the case of nonsuit, pursuant to G.S. 15-173. State v. Evans, 279 N.C. 447, 183 S.E. 2d 540 (1971); State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967). The sufficiency of the evidence for the State in a criminal case is reviewable upon appeal without regard to whether a motion has been made pursuant to G.S. 15-173 in the trial court. G.S. 15-173.1. From the record in this case it is not clear whether defendant actually made any motion. However, we review the sufficiency of the State\u2019s evidence under the provisions of G.S. 15-173.1 as if the proper motion had been made under G.S. 15-173. On such motion the evidence must be considered in the light most favorable t\u00f3 the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the State\u2019s evidence, are for the jury to resolve and do not warrant nonsuit. Only the evidence favorable to the State is considered, and defendant\u2019s evidence relating to matters of defense or defendant\u2019s evidence in conflict with that of the State is not considered. State v. Henderson, 276 N.C. 430, 173 S.E. 2d 291 (1970); 2 Strong, N.C. Index 2d, Criminal Law \u00a7 104 (1967). To withstand a judgment as of nonsuit there must be substantial evidence of all material elements of the offense charged. Whether the State has offered such substantial evidence presents a question of law for the trial court. State v. Evans, 279 N.C. 447, 183 S.E. 2d 540 (1971); State v. Allred, 279 N.C. 398, 183 S.E. 2d 553 (1971). The essential elements of murder in the first degree are premeditation, deliberation, and malice. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969).\nIn this case the Stat\u00e9 offered evidence which tends to show that defendant entered the establishment known as the Red Hen on 27 March 1972 with a pistol in his hand, told deceased to stand up, and told him he was going to kill him. He then shot deceased twice, and deceased died as a result of these bullet wounds. The State\u2019s evidence further tends to show that after deceased fell, defendant walked over to him and said \u201cI hope you dead,\u201d and that on several occasions prior to the shooting defendant said he was going \u201cto get\u201d the deceased. From this evidence the jury could reasonably infer that defendant killed the deceased and that the killing was committed with premeditation, deliberation, and malice.\nIn passing upon the sufficiency of the State\u2019s evidence to carry the case to the jury, the trial court in' the present case was not required to consider defendant\u2019s testimony concerning self-defense. Therefore, the court properly refused to enter judgment as of nonsuit for defendant.\nDefendant next contends that the court violated G.S. 1-180 by asking defendant certain questions. On direct examination defendant testified: \u201cWhen I walked into the Red Hen-, Blue and Bass were sitting together. When he seen me he started getting up and both of us were reaching \u2014 he pulled Blue in front of him and I just started shooting, that is how I hit him and that, is how I hit Blue.\u201d The court then asked defendant: \u201cWho was holding Blue in front of him?\u201d Defendant answered: \u201cThe deceased. I didn\u2019t intend to hit Blue. When I walked in our eyes \u25a0 met and he got up and began reaching under his coat. I didn\u2019t wait to see if he had a gun or not, but he was just going through the motion.\u201d The court then asked: \u201cThe deceased is alleged to be Bass, isn\u2019t it?\u201d At another point during the trial defendant\u2019s witness Blue testified: \u201cBass grabbed me after the first shot trying to use me as a shield I guess.\u201d The court asked Blue: \u201cWho was it that grabbed you?\u201d Obviously, in asking these questions the court simply meant to clarify the facts. Nothing in the questions would indicate to the jury that the judge- had any opinion as to the guilt or innocence of defendant. If the court questions a witness only to clarify the witness\u2019s testimony or to promote a proper understanding of the case, such questions do not amount to an expression of opinion. State v. Freeman, 280 N.C. 622, 187 S.E. 2d 59 (1972); State v. Colson, 274 N.C. 295, 163 S.E. 2d 376 (1968). Defendant also contends that the court erred in telling the witness \u25a0 Blue: \u201cSpeak out. She has to record your answer.\u201d This statement was simply an effort by the court to get the witness to speak louder. State v. Allen, 283 N.C. 354, 196 S.E. 2d 256 (1973). These contentions are without merit. ;\u25a0\nDefendant brings forward four assignments of error based on the admission of certain documents introduced by the State and the answers to certain questions asked by the solicitor. An examination of the record discloses that defendant did not object to the . admission of the documents or to the questions' that defendant now contends were improper, and that defendant made no motions to strike any of the answers. Ordinarily, failure-to object in apt time to incompetent testimony is regarded as a waiver of the objection, and its admission is not assignable as error'unless the evidence is forbidden by statute.. If the testimony is incompetent,\u2019 objection thereto should be imposed at the time.the question is asked, and if no objection, was made to the question when asked, a motion to strike the answer should be made. State v. Lewis, 281 N.C. 564, 189 S.E. 2d 216 (1972); State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970); 1 Stahsbury\u2019s N. C. Evidence, Brandis Rev. \u00a7 27 (1973) ; 7 Strong, N. C. Index 2d, Trial \u00a7 15 (1968). , .\n' Even though no objections were made to the admission of the documents or to the questions asked by the State, and no motions were made to strike the answers to such questions, in view of the serious nature of this case we have carefully examined \u00e9ach assignment and find them to be without m\u00e9rit.\nDefendant finally contends that the court erred in its charge.to the jury in that \u201clittle explanation was devoted to the lesser included charges of second degree murder and manslaughter.\u201d Defendant does not contend that the court failed to charge the jury on the lesser included offenses of second degree murder and manslaughter, nor does he contend that the instructions as given were incorrect. Rather he simply contends that the \u201cshortness of the time\u201d devoted to the instructions on the lesser included offenses could have c\u00e1used the jury to forget, those.portions of the charge when deliberations began. The court in the. charge correctly ahd adequately defined murder in the ..first'degree, murder in the. second, degre\u00e9, and voluntary manslaughter, and fully instructed the jury on defendant\u2019s right of s\u00e9lf-defense. In the final mandate to . the jury, the court applied the law to the facts in the case and instructed the jury that it could return one of four verdicts: Guilty of murder in the first degree, guilty of murder-in the second degree, guilty of voluntary- manslaughter, or not guilty. The court then inquired if defendant desired any further instructions. Defendant\u2019s counsel replied: \u201cNo, your Honor. I think that it was a very fine charge.\u201d The presiding judge in' his charge to . the jury must declare- and -explain the law arising on the evidence relating to each substantial feature of the case. State v. Brady, 236 N.C. 295, 72 S.E. 2d 675 (1952); Q.S. 1-180. When the trial judge has instructed-the jury correctly1.and adequately on the essential features of the case but defendant desires more elaboration on any point or a mor\u00e9 detailed explanation of the law, then he should request further instructions. Otherwise, he cannot complain. State v. Brooks, 228 N.C. 68, 44 S.E. 2d 482 (1947); State v. Gordon, 224 N.C. 304, 30 S.E. 2d 43 (1944); State v. Hendricks, 207 N.C. 873, 178 S.E. 557 (1935); 7 Strong, N. C. Index 2d, Trial \u00a7\u00a7 33, 38 (1968). Neither the exception, nor the' assignment of error, nor the brief, calls attention to any particul\u00e1r statements or omissions in the charge: AH ar\u00e9 broadside \u00e1nd are not sufficient to draw into focus, any assigned error of law. State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736 (1965); Clifton v. Turner, 257 N.C., 92, 125 S.E. 2d 339 (1962) State v. Stantliff, 240 N.C. 332, 82 S.E. 2d 84 (1954)1 Strong, N. C. Index 2d, Appeal and Error \u00a7 31 (1967). This assignment is without, merit.\nDefendant has had a fair trial, free from prejudicial error; The verdict of the jury is fully supported by the evidence. In the record we find no basis for a new trial. \u25a0\nNo error.", "type": "majority", "author": "MOORE, Justice." } ], "attorneys": [ "Attorney General Robert Morgan and, Associate Attorney Ann Reed for the State.", "Felix B. Clayton and Raymond Sitar for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMY L. EVERETTE\nNo. 23\n(Filed 10 October 1973)\n1. Criminal Law \u00a7 164 \u2014 failure to move for nonsuit in trial court \u2014 consideration on appeal\nThough it was not clear from the record whether defendant actually made a motion to dismiss or a motion for judgment as in the case of nonsuit, the court reviewed the sufficiency of the State\u2019s evidence under the provisions of G.S. 16-173.1 as if the proper motion had been made in the trial court.\n\u25a02. Homicide \u00a7 21\u2014 first degree murder \u2014 death by. shooting \u2014 sufficiency of evidence\nIn passing upon the sufficiency of the State\u2019s evidence to carry the case to the jury, the trial court in a murder prosecution was not required to consider defendant\u2019s testimony concerning self-defense, but properly submitted the case to the jury where the State\u2019s evidence tended to show that defendant entered an eating establishment with a pistol in his hand, that he told deceased to stand up and that he was going to kill him, that he shot deceased twice, walked over to him and said \u201cI hope you dead,\u201d that deceased died as a result of the bullet wounds, and that on several occasions prior to the shooting defendant said he was going \u201cto get\u201d the deceased.\n3. Criminal Law \u00a7 99 \u2014 questioning of witness by court \u2014 no error\nThe trial court in a murder case did not express an opinion in questioning defendant and one of defendant\u2019s witnesses in an effort to clarify their testimony, nor did the court err in instructing a witness to speak louder.\n4. Criminal Law \u00a7 162\u2014 failure to object to evidence \u2014 failure to move to strike.\u2014 consideration on appeal\nThough defendant made no objections to the admission of documents introduced by the State or to questions asked by the State, made no motions to strike answers to those questions, but did bring forward on appeal assignments of error based on admission of the documents in the trial court, the Supreme Court considered the assignments of error and found them to be without merit.\n5. Criminal Law \u00a7 163 \u2014 objection to instructions \u2014 made for first time on appeal\nWhere the trial court correctly and adequately defined murder in the first degree, murder in the- second degree and voluntary manslaughter, fully instructed the jury on defendant\u2019s right of self-defense, applied the law to the facts, and finally inquired if defendant desired any further instructions, defendant could not complain on appeal that an insufficient amount of time was devoted to the instructions on second degree murder and manslaughter, since he did not request additional instructions; furthermore, defendant\u2019s assignment of error to the charge was broadside and ineffectual.\nAppeal by defendant from Hall, J., at the 22 January 1973 Session of Durham Superior Court.\nOn an indictment proper in form, defendant was tried and convicted of murder in the first degree of Norwood T. Bass, alias Pumpkin Bass. Defendant appeals from a judgment imposing a sentence of life imprisonment.\nThe State presented three witnesses who testified that on 27 March 1972 around 5 p.m. they were in a food establishment known as the Red Hen in Durham, North Carolina. Their testimony tends to show that the deceased and Herbert Blue were seated in a booth in the Red Hen when defendant walked in with a pistol in his hand, told the deceased to stand up, and told him he .was going to kill him. As the deceased stood up, defendant shot him twice. Defendant also shot Blue once. Deceased then ran to the back of the Red Hen and fell. Defendant walked over to him and said \u201cI hope you dead,\u201d and then ran out of the Red Hen.\nThese three eyewitnesses also testified that prior to the shooting the deceased did not reach into his coat as if to get a gun, and that the only thing he had in his hand when he was shot was a grape soda drink.\nB. W. Burch, the investigating officer of the Durham Police Department, found no weapon on the deceased\u2019s person. Another police officer, W. Y. Poole, testified that he had known both the deceased and defendant for some time prior to 27 March 1972, and that the deceased shot defendant in the arm about a year before the alleged shooting in the Red Hen. Officer Poole further testified that on several occasions \u2014 the latest being about a week before the date of the alleged shooting in the Red Hen \u2014 defendant said that he was going \u201cto get\u201d the deceased.\nDr. John T. Daly, admitted by defendant\u2019s counsel to be a medical expert, testified that the deceased died as a result of two bullet wounds, one in the chest and one in the abdomen, either of which could have been fatal.\nDefendant, testifying in his own behalf, stated that about a year prior to the shooting in the Red Hen the deceased shot defendant in the arm. He further testified that two days before the shooting in the Red Hen someone took a shot at him, and the next morning the deceased called defendant on the telephone and said he would not miss him the next time. As a result of these alleged shootings, defendant was afraid of the deceased and started carrying a pistol. On 27 March 1972, the day following the alleged telephone call from the deceased to defendant, defendant went into the Red Hen not knowing that the deceased was inside. Defendant saw deceased start reaching into his coat as if to get a gun. Without waiting to see if the deceased actually had a gun or \u201cwas just going through the motion,\u201d defendant started shooting. Deceased immediately pulled Blue in front of him, and defendant accidentally shot Blue. Defendant denied that he said \u201cI hope you dead,\u201d or that he told Officer Poole that he was going \u201cto get\u201d the deceased.\nBlue, testifying for the defendant, stated that he did not see a gun in the deceased\u2019s hand, but that deceased had \u201creached for his side.\u201d Blue also testified that after defendant had fired one shot, the deceased grabbed Blue and used him \u201cas a shield,\u201d and that this was how he was shot.\nAttorney General Robert Morgan and, Associate Attorney Ann Reed for the State.\nFelix B. Clayton and Raymond Sitar for defendant appellant." }, "file_name": "0081-01", "first_page_order": 101, "last_page_order": 107 }