{ "id": 8562720, "name": "STATE OF NORTH CAROLINA v. JIMMY LEE CREWS", "name_abbreviation": "State v. Crews", "decision_date": "1974-01-25", "docket_number": "No. 43", "first_page": "427", "last_page": "442", "citations": [ { "type": "official", "cite": "284 N.C. 427" } ], "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": "180 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "753" } ], "opinion_index": 0 }, { "cite": "278 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560474 ], "year": 1971, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0334-01" ] }, { "cite": "128 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "893" } ], "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "year": 1963, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "196 S.E. 2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559204 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0444-01" ] }, { "cite": "161 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "567" } ], "opinion_index": 0 }, { "cite": "274 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559380 ], "year": 1968, "pin_cites": [ { "page": "71-72" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0062-01" ] }, { "cite": "179 S.E. 2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559984 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0210-01" ] }, { "cite": "150 S.E. 2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562695 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0430-01" ] }, { "cite": "142 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "264 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574153 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0508-01" ] }, { "cite": "66 S.E. 2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "687-88" } ], "opinion_index": 0 }, { "cite": "234 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618520 ], "year": 1951, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0101-01" ] }, { "cite": "58 S.E. 2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "454" } ], "opinion_index": 0 }, { "cite": "230 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630733 ], "year": 1949, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0501-01" ] }, { "cite": "150 S.E. 678", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1929, "pin_cites": [ { "page": "679" } ], "opinion_index": 0 }, { "cite": "198 N.C. 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597808 ], "year": 1929, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc/198/0082-01" ] }, { "cite": "185 S.E. 2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "173" }, { "page": "173" } ], "opinion_index": 0 }, { "cite": "279 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572102 ], "year": 1971, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0716-01" ] }, { "cite": "185 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "133" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "279 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571995 ], "year": 1971, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0676-01" ] }, { "cite": "172 S.E. 2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "518" } ], "opinion_index": 0 }, { "cite": "276 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561475 ], "year": 1970, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0381-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "year": 1970, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] }, { "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": "85 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "327" } ], "opinion_index": 0 }, { "cite": "241 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610424 ], "year": 1955, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0356-01" ] }, { "cite": "254 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "year": 1955, "pin_cites": [ { "page": "810" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1203, "char_count": 36367, "ocr_confidence": 0.575, "pagerank": { "raw": 3.5305816185345103e-07, "percentile": 0.8842859178276417 }, "sha256": "92ef8b1b3ff0a81f9d66d1c666ccdfe6e5e7055dc033982b017ebc88aaaa57a6", "simhash": "1:979ada6b66d891f9", "word_count": 6062 }, "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 LEE CREWS" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nNone of defendant\u2019s assignments of error challenges the sufficiency of the evidence to support the verdict of guilty of murder in the first degree. Obviously, there was ample evidence to warrant and support that verdict.\nDefendant listed nineteen assignments of error. His brief states that Assignments Nos. 7, 8, 9, 10 and 13 are not brought forward. It contains no discussion of or reference to Assignments Nos. 14,15 and 16. These eight assignments \u201cwill be taken as abandoned by him.\u201d Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810; State v. Gordon, 241 N.C. 356, 362, 85 S.E. 2d 322, 327 (1955).\nOf the remaining eleven assignments, Nos. 1, 2, 3, 4, 5, 6, 11 and 18 refer to the court\u2019s charge; and Nos. 12 and 17 refer to the admission of evidence. Assignment No. 19 refers to a judgment for counsel fees entered after completion of the trial.\nWe consider first those assignments which refer to the charge. We notice first that neither the exceptions nor the assignments comply with the Rules of Practice in the Supreme Court. These words and figures, \u201cExceptions Nos. 24, 25, 33, 32, 27, 26, 35,\u201d appear in the record immediately following the court\u2019s charge. Exceptions bearing these numbers do not appear in the charge. These words and figures do appear at intervals in the charge: \u201cExceptions Nos. 28 and 34\u201d; \u201cException No. 30\u201d; \u201cException No. 29\u201d; and \u201cException No. 31.\u201d None of these exceptions identifies by brackets or otherwise any particular portion of the charge to which exception is taken. These exceptions are ineffectual as bases for assignments of error in that they do not point out specific portions of the charge as erroneous.\nMoreover, those assignments of error which refer to the charge are also defective because of defendant\u2019s failure to comply with the requirement that the appellant quote in each assignment the portion of the charge to which he objects. Too, where an assignment is based on failure to charge, it is necessary to set out the appellant\u2019s contention as to what the court should have charged. State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736 (1965); State v. Kirby, 276 N.C. 123, 181, 171 S.E. 2d 416, 422 (1970).\nNone of defendant\u2019s assignments of error comply with well established appellate rules. Notwithstanding, since a life sentence is involved, we have elected to discuss defendant\u2019s contentions.\nIn Assignment No. 1, defendant asserts \u201c[t]he court erred by failing to charge the jury with respect to the lesser degrees of the crime charged, in that the court failed to charge the jury with respect to voluntary manslaughter.\u201d There appears immediately below this assignment the following: \u201cException No. 24.\u201d\nThe court properly instructed the jury that, if the State satisfied the jury beyond a reasonable doubt that defendant by the use of a pistol, a deadly weapon, intentionally shot and thereby killed his wife, the law would raise two presumptions, (1) that the killing was unlawful, and (2) that it was done with malice. State v. Barrow, 276 N.C. 381, 390, 172 S.E. 2d 512, 518 (1970), and cases cited. There was no evidence that defendant shot his wife in the heat of passion or in self-defense. Defendant\u2019s testimony was to the effect that the pistol discharged accidentally when his mother-in-law was attempting to take the pistol from him. Under these circumstances defendant was not entitled to an instruction on voluntary manslaughter and was not .prejudiced by the court\u2019s submission of involuntary manslaughter as a permissible verdict. State v. Wrenn, 279 N.C. 676, 683, 185 S.E. 2d 129, 133 (1971); State v. Stimpson, 279 N.C. 716, 724, 185 S.E. 2d 168, 173 (1971).\nIn Assignment No. 2, defendant asserts \u201c[t]he court erred by failing to charge the jury with respect to the law of flight.\u201d There appears immediately below this assignment the following: \u201cException No. 25.\u201d\nIn his brief, defendant quotes this excerpt from the charge: \u201cIn determining the question of premeditation and deliberation, it is proper for the jury to take into consideration the conduct of the defendant before and after, as well as at the time of the event, that is the time that Jevetta Louise Crews was shot and all the attending circumstances.\u201d\nThe quoted instruction is in substantial accord with the statement of Chief Justice Stacy in State v. Evans, 198 N.C. 82, 84, 150 S.E. 678, 679 (1929).\nDefendant contends his \u201cafter\u201d conduct would include his flight from the scene of homicide, a circumstance for consideration only on the issue of guilt and not as tending to show premeditation and deliberation. State v. Blanks, 230 N.C. 501, 504, 58 S.E. 2d 452, 454 (1949).\nIn State v. Marsh, 234 N.C. 101, 105-06, 66 S.E. 2d 684, 687-88 (1951), Chief Justice Stacy, referring to essentially the same instruction in a case where no instruction was given with reference to the law of flight, said: \u201cThe court was here speaking to the purpose and intent in the defendant\u2019s mind at the time of the homicide. This, the jury must have understood. Moreover, there is no mention in the court\u2019s charge of the defendant\u2019s . . . flight. ... Nor was there any request to charge on the significance of these circumstances or in what light they should be considered by the jury. Evidently, the defendant\u2019s conduct long after the homicide was not a matter of debate on the hearing. The immediate circumstances were apparently sufficient. The contention presently advanced seems to have been an afterthought.\u201d\nIn the present case the court gave no instruction with respect to flight. The court related the testimony, principally that of defendant, with reference to what defendant did from the time his wife was shot until he appeared voluntarily at the Police Station in Montgomery, Alabama. Nothing in the court\u2019s review of the State\u2019s contentions implies that the State contended defendant\u2019s trip to Montgomery, Alabama, was a circumstance to be considered as evidence tending to show premeditation or deliberation. Our consideration of this contention impels the conclusion that the court\u2019s failure \u201cto charge the jury with respect to the law of flight,\u201d was not prejudicial to defendant.\nIn Assignment No. 3 defendant asserts \u201c[t]he court erred by failing to charge the jury with respect to accidental homicide\u201d; and in Assignment No. 4 he asserts \u201c[t]he court erred by failing to charge the jury with respect to the degree of proof of the defense of accidental homicide and other defenses available to the defendant.\u201d There appear immediately below these assignments, respectively, the following: \u201cException No. 33,\u201d \u201cException No. 32.\u201d\nA defendant does not plead an affirmative defense by contending that the homicide was the result of accident or misadventure. This contention is merely a denial of guilt. No burden of proof rests on defendant to show accident or misadventure and the burden of proof rests upon the State to prove beyond a reasonable doubt all elements of the alleged crime. State v. Phillips, 264 N.C. 508, 142 S.E. 2d 337 (1965); State v. Fowler, 268 N.C. 430, 150 S.E. 2d 731 (1966); State v. Woods, 278 N.C. 210, 179 S.E. 2d 358 (1971). We note this excerpt from the charge: \u201cThe court instructs you that if the killing of the deceased, Jevetta Louise Crews, was unintentional and not proximately caused by criminal negligence, then it would be your duty to return a verdict of not guilty.\u201d\nIn Assignment of Error No. 5 defendant asserts \u201c[t]he court erred by failing to charge the jury with respect to the law of intoxication\u201d; and in Assignment No. 6 defendant asserts \u201c[t]he court erred by failing to charge the jury with respect to the degree of proof of the defense of intoxication and other defenses.\u201d There appear immediately below these assignments, respectively, the following: \u201cException No. 27,\u201d \u201cException No. 26.\u201d\nThe court\u2019s charge includes the following: \u201c[Y]ou will consider his [defendant\u2019s] testimony that he had been drinking some whiskey as bearing upon whether the State has satisfied the jury from the evidence beyond a reasonable doubt that the defendant intentionally shot Jevetta Crews and thereby proximately caused her death, and you will also consider this as evidence as bearing upon whether the State has satisfied the jury from the evidence and beyond a reasonable doubt that the defendant unlawfully killed Jevetta Louise Crews in the execution of an actual specific intent to kill formed after premeditation and deliberation.\u201d\nThere is no evidence that defendant was intoxicated. The following is the only evidence relating to defendant\u2019s drinking. The statement defendant signed in Montgomery, defendant\u2019s Exhibit No. 2, includes the following: \u201cI got to drinking and I went over there to her mama\u2019s house.\u201d On cross-examination, defendant testified that he drank some whiskey at \u201cthe post\u201d in High Point before going to his uncle\u2019s service station.\nAssuming, without deciding, there was sufficient evidence of defendant\u2019s drinking whiskey to justify an instruction with reference thereto, the instructions given were in accordance with our decisions. State v. Propst, 274 N.C. 62, 71-72, 161 S.E. 2d 560, 567 (1968); State v. Bunn, 283 N.C. 444, 196 S.E. 2d 777 (1973), and cases there cited.\nIn Assignment No. 11, defendant asserts \u201c[t]he court erred in charging.the jury as to the careless and reckless use of a gun constituting an element of involuntary manslaughter, there being no evidence of such careless or reckless use.\u201d There appears immediately below this assignment the following: \u201cException No. 31.\u201d\nThe State\u2019s evidence is clear and positive to the effect that defendant intentionally shot and killed his wife. Defendant\u2019s testimony, if considered in the light most favorable to him, discloses an unintentional homicide caused by his careless and reckless handling of the pistol. The court\u2019s instructions with reference to involuntary manslaughter are in accord with our decisions. State v. Foust, 258 N.C. 453, 459, 128 S.E. 2d 889, 893 (1963); State v. Phillips, supra, at 517, 142 S.E. 2d at 343; State v. Wrenn, supra, at 683, 185 S.E. 2d at 133; State v. Stimpson, supra, at 724, 185 S.E. 2d at 173.\nIn Assignment No. 18, defendant asserts \u201c[t]he court erred by failing to charge the jury that State\u2019s Exhibits 1 through 19, inclusive, were admitted as illustrative evidence only.\u201d There appears immediately below this assignment the following: \u201cException No. 35.\u201d\nIn all instances, where exhibits such as photographs, diagrams, etc., were competent only to explain and illustrate the testimony of witnesses, the judge instructed the jury to this effect. When such proper instructions are given when the evidence is admitted, the judge is not required to repeat these instructions in the charge. This assignment refers to Exhibits Nos. 1-19, inclusive. Certain of the exhibits, for example, the pistol, the bullets, Jevetta\u2019s robe, etc., were competent as substantive evidence. This assignment is broadside, ineffectual and without merit.\nIn Assignment No. 12, defendant asserts \u201c[t]he court erred in admitting into evidence defendant\u2019s statements not voluntarily made in violation of defendant\u2019s constitutional right against self-incrimination as guaranteed by the United States Constitution.\u201d There appears immediately below this assignment the following: \u201cExceptions 18 and 19.\u201d\nThe initial incriminating statement was made by defendant in Montgomery, Alabama, when he voluntarily went to the Police Station and reported that he had killed his wife the preceding night in Greensboro, North Carolina. Before admitting other statements made by defendant, a voir dire hearing was conducted. The evidence at voir dire fully supports the court\u2019s evidentiary and ultimate findings to the effect that all statements made by defendant in Montgomery, Alabama, were made freely, voluntarily and understandingly after the defendant had been clearly and fully advised of all his constitutional rights. Indeed, the manner in which defendant was treated by the Montgomery police is worthy of commendation.\nIn Assignment No. 17, defendant asserts \u201c[t]he court erred in allowing into evidence State\u2019s Exhibits 1 through 19 containing photographs and items highly prejudicial and inflammatory to the defendant.\u201d Again, defendant lumps together Exhibits Nos. 1-19, inclusive, without differentiation as to the nature and character of these exhibits. Any contention that the photographs of unclothed portions of the body of Jevetta were incompetent when offered and admitted to illustrate the testimony of the doctor with reference to the entrance of the three bullets and the exit of two of them is without merit. Evidence that Jevetta was shot in her upper back once and twice in the front in the area of her chest and abdomen strongly corroborated the testimony offered by the State. They were competent for use by the doctor to illustrate his testimony. State v. Cutshall, 278 N.C. 334, 347, 180 S.E. 2d 745, 753 (1971), and cases cited.\nIn Assignment No. 19, defendant asserts that \u201c[t]he court erred in entering an order and judgment against defendant for payment of counsel fees, said order appearing on page 9 of the petition for certiorari, dated February 16, 1973 and signed by Lupton, Judge.\u201d There appears immediately below this assignment the following: \u201cException No. 38.\u201d There appears in the record a judgment dated 16 February 1973 signed by Judge Lupton. This judgment provides for the recovery by the State of North Carolina from defendant of the sum of $1,000.00 for services provided defendant as an indigent by the Public Defender. Presumably this judgment was entered pursuant to G.S. 7A-455 (b).\nIn his brief, defendant attacks this judgment on the following grounds: He asserts it was entered in his absence, without notice to him of any hearing with reference thereto, and without affording him any opportunity to be heard in connection therewith. He asserts further \u201cthat the judgment is in the nature of a civil judgment and there were not findings of fact nor conclusions of law sufficient to support such judgment pursuant to Rule 52 of the North Carolina Rules of Civil Procedure.\nThe record before us affords no basis for passing upon the validity of this judgment. Nothing therein supports or negates defendant\u2019s contentions. Under the circumstances, this Court, in the exercise of its supervisory jurisdiction, vacates this civil judgment without prejudice to the State\u2019s right to apply for a judgment in accordance with G.S. 7A-455 after due notice to defendant and a hearing on such application in the Superior Court of Guilford County.\nWith reference to verdict and judgment thereon: No error.\nWith reference to civil judgment for counsel fees: Judgment vacated and cause remanded with instructions.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Attorney General Robert Morgan and Assistant Attorneys General Edward L. Eatman, Jr. and Ralf F. Haskell for the State.", "Stephen E. hawing for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMY LEE CREWS\nNo. 43\n(Filed 25 January 1974)\n1. Criminal Law \u00a7 163\u2014 exceptions to charge\nExceptions to the charge which do not point out specific portions of the charge as erroneous are ineffectual as bases for assignments of error.\n2. Criminal Law \u00a7 163\u2014 assignments of error to charge\nAssignments of error to the charge were defective in failing to quote in each assignment the portion of the charge to which appellant objects.\n3. Criminal Law \u00a7 163\u2014 failure to charge \u2014 assignments of error\nWhere an assignment of error is based on failure to charge, it must set out appellant\u2019s contention as to what the court should have charged.\n4. Homicide \u00a7 27\u2014 failure to instruct on voluntary manslaughter \u2014 instruction on involuntary manslaughter\nIn a prosecution of defendant for the murder of his wife, defendant was not entitled to an instruction on voluntary manslaughter and was not prejudiced by the court\u2019s submission of involuntary manslaughter as a possible verdict where the State\u2019s evidence tended to show that defendant intentionally shot and killed his wife, there was no evidence that defendant shot his wife in the heat of passion or in self-defense, and defendant\u2019s testimony was to the effect that the pistol discharged when his mother-in-law was attempting to take the pistol from him.\n5. Homicide \u00a7 25\u2014 instructions \u2014 premeditation and deliberation \u2014 consideration of defendant\u2019s conduct after homicide\nThe court\u2019s instruction in a homicide case that in determining the question of premeditation and deliberation the jury might consider defendant\u2019s conduct before and after as well as at the time of the homicide and all attendant circumstances did not permit the jury to consider defendant\u2019s flight on the question of premeditation and deliberation, and the court did not err in failing to charge on the law of flight after having given such instruction.\n6. Homicide \u00a7 14\u2014 accident or misadventure \u2014 burden of proof\nA contention by defendant that a homicide was the result of accident or misadventure is merely a denial of guilt and does not constitute an affirmative defense, and no burden of proof rests on defendant to show accident or misadventure.\n7. Criminal Law \u00a7 6; Homicide \u00a7 28\u2014 murder case \u2014 evidence defendant had been drinking \u2014 instructions\nThe trial court in a homicide prosecution properly instructed the jury that it could consider defendant\u2019s testimony that he had been drinking some whiskey as bearing upon whether the State had satisfied the jury beyond a reasonable doubt that defendant intentionally shot the victim and thereby proximately caused her death and that defendant unlawfully killed the victim in the execution of an actual specific intent to kill formed after premeditation and deliberation.\n8. Homicide \u00a7 27\u2014 instructions \u2014 involuntary manslaughter \u2014 reckless use of gun\nThe trial court in a homicide case properly instructed the jury on the careless and reckless use of a gun as an element of involuntary manslaughter where defendant\u2019s testimony, if considered in the light most favorable to him, disclosed an unintentional homicide caused by his careless and reckless handling of the pistol.\n9. Criminal Law \u00a7 95\u2014 evidence competent for illustration \u2014 instructions at time of admission \u2014 further instructions in charge\nWhere the court instructed the jury at the time exhibits were admitted that they were competent only to explain and illustrate the testimony of witnesses, the court was not required to repeat such instructions in the charge.\n10. Criminal Law \u00a7 76\u2014 admission of in-custody statements\nThe voir dire evidence fully supported the court\u2019s evidentiary and ultimate findings that all statements made by defendant to police in another state were made freely, voluntarily and understandingly after defendant had been clearly and fully advised of all his constitutional rights, and the statements were properly admitted in defendant\u2019s homicide trial.\n11. Homicide \u00a7 20\u2014 photographs of victim\u2019s body \u2014 admission for illustration\nIn this homicide prosecution, photographs of unclothed portions of the victim\u2019s body were properly admitted for the purpose of illustrating the testimony of a doctor with reference to the entrance of three bullets and the exit of two of them.\n12. Attorney and Client \u00a7 7\u2014 judgment against indigent defendant for counsel fees \u2014 notice and hearing\nWhere the record afforded no basis for passing upon the validity of a judgment providing for the recovery of $1,000 by the State from defendant for services provided defendant as an indigent by the public defender, the Supreme Court vacated the judgment without prejudice to the State\u2019s right to apply for a judgment in accordance with G.S. 7A-455 after due notice to defendant and a hearing in the superior court.\nAppeal by defendant from Lupton, J., 12 February 1973 Criminal Session of Guilford Superior Court.\nDefendant was indicted and convicted for the first degree murder of his wife, Jevetta Louise Crews.\nUncontradicted evidence tends to show the facts narrated in the following numbered paragraphs.\n1. The death of Jevetta Crews on 6 December 1972 was caused by gunshot wounds inflicted by bullets discharged from the .32 pistol in evidence as State\u2019s Exhibit No. 18. She was fatally injured and died in the home of her mother, Mrs. Ruby Hemphill, in Greensboro, N. C.\n2. Prior to 6 December 1972 Jevetta, 27, and defendant, 32, had separated. On that date, Jevetta and Angela, 7, the daughter of Jevetta and defendant, were living in Greensboro with Mrs. Hemphill, Mr. Hemphill and Jimmy Henley, 13, Mrs. Hemphill\u2019s son by a former marriage. Mr. Hemphill was not at home on 6 December 1972 when defendant arrived or at any time defendant was in the Hemphill home.\n3. On 6 December 1972 defendant lived alone in his house in High Point, N. C. From there he telephoned and talked to Jevetta, who was then in the Hemphill home. Later, defendant went to his uncle\u2019s service station in High Point. Without permission, he removed his uncle\u2019s .32 loaded pistol from the drawer where it was kept, stuck the pistol in his belt and proceeded to the Hemphill home in Greensboro. It was dark when he left his uncle\u2019s service station in High Point.\n4. Defendant\u2019s finger was on the trigger of his uncle\u2019s .32 pistol (State\u2019s Exhibit No. 18) when it discharged the bullets which fatally injured Jevetta.\n5. After Jevetta was shot, defendant left the Hemphill home. He drove from Greensboro on Interstate No. 85. The next day, 7 December 1972, in Montgomery, Alabama, defendant went voluntarily to the Police Department where, orally and in writing, he made statements to the Montgomery officers concerning what had happened the preceding night in Greensboro and delivered to them his uncle\u2019s .32 pistol. Defendant waived extradition and voluntarily returned to Greensboro with a Greensboro officer to whom the Montgomery officers delivered the .32 pistol.\n6. Three bullets from the .32 pistol penetrated the body of Jevetta. Two passed through her body. They were picked up before her body was removed from the Hemphill home. One was removed from her body by the doctor who performed an autopsy.\nThe State\u2019s evidence as to what occurred while defendant was at the Hemphill house consists of the testimony of Mrs. Hemphill and of Jimmy Henley (hereafter Henley). Summarized, except when quoted, their testimony tends to show the facts narrated below.\nJevetta received a telephone call about 4:30 or 4:45 p.m. She talked ten or fifteen minutes and then went into the living room and sat down on the couch. About 7:00 p.m. Mrs. Hemp-hill observed that a car had stopped in front of her house. When she \u201ccracked the door to see who it was,\u201d defendant pushed open the door and entered the living room. Jevetta and Angela were in the dining room. Henley was in his bedroom. Jevetta got up, went into the living room and there confronted defendant and said: \u201cJimmy, go back out. You know you\u2019re not wanted here. Go on and leave.\u201d After placing her hands upon defendant, Jevetta turned to Mrs. Hemphill and said: \u201cMother, he\u2019s got a gun.\u201d Mrs. Hemphill told her: \u201cGet in yonder.\u201d Jevetta then turned around and started across the living room toward the hall. As she walked away, defendant pulled out his pistol and shot her. He fired this first shot into her back. Jevetta exclaimed, \u201cOh, my God, Jimmy,\u201d and then fell. As Mrs. Hemphill wrestled with him, defendant jerked loose from her grasp; and, as Jevetta lay on the floor, defendant \u201cstood over top of her and shot her twice more.\u201d After he had fired the first of these shots, defendant said to Jevetta: \u201cI told you I\u2019d get you.\u201d He then fired the last shot. When these two shots were fired, Jevetta was lying on her back, with her feet in the living room and her head down the hall.\nAfter the last two shots Mrs. Hemphill wrestled with defendant and got him away from Jevetta. Defendant pushed Mrs. Hemphill over a table and caused a lamp to fall across Jevetta\u2019s feet. Then defendant stepped back and pointed the pistol straight toward her chest. Grabbing his hand, she pushed it down on the couch. Defendant jerked away from her and ran out the door. Mrs. Hemphill asked the telephone operator to send the police and an ambulance. After making this call, she went over to her daughter, picking the lamp up off the floor in order to get to her. Blood was gushing out of Jevetta\u2019s mouth. Jevetta\u2019s body remained in the same position until the officers arrived. Mrs. Hemphill stepped on and picked up a bullet which she handed to an officer.\nThe pistol fired by defendant had been \u201cstuck down in his sweater.\u201d Mrs. Hemphill saw him pull it out before firing the first shot.\nWhen defendant fired the first shot, Angela ran out the back door and \u201cwent to a neighbor\u2019s.\u201d\nWhen defendant entered the living room, Henley ran into the hall. He heard Jevetta, his sister, tell Mrs. Hemphill that defendant had a gun and heard Mrs. Hemphill tell Jevetta to go to the back room. Jevetta was coming toward Henley when defendant pulled out the pistol. He shot her as she reached the edge of the hall, close to where Henley was standing. Henley ran into the bedroom and was under his bed when the last two shots were fired. After he heard defendant\u2019s car \u201cspinning off,\u201d Henley went back into the hall and saw Jevetta. Blood was coming out of her mouth, nose and ears.\nOfficers Jones and Nesbit arrived at the Hemphill home some eight minutes after 7:00 p.m. Their examination of Je-vetta disclosed no signs of life. She was lying on her back. Her feet and lower legs were in the living room; the rest of her body was down the hall. Officer Bozarth, of the Police Department Identification Section, arrived at 7:46 p.m. Jevetta\u2019s body had not been moved. Bozarth made photographs of the area, and he and Officer Jones made measurements. The officers used these photographs to explain and illustrate their detailed observations at the scene.\nThe body was removed by ambulance from the Hemphill home about 8:20 p.m. to Cone Hospital where photographs were made of portions of the unclothed body of Jevetta. Three of these photographs were used to explain and illustrate the testimony of the officers and of the doctor who performed the autopsy with reference to the points of entrance and exit of the bullets.\nThe testimony of Dr. William Womble Forrest, the pathologist who performed the autopsy, includes the following: One of the three bullets entered at the left back, up high, about six inches down from the top of the shoulder and about three inches to the left of the vertebral column. It went through the left lung, caused hemorrhage in the left chest cavity, and came out in front. The entrance wounds of the two other bullets were on the front of the body, one at the right breast and the other at the abdomen just below the rib cage.\nDetective J. C. Cunningham, of the Police Department from Montgomery, Alabama, testified to what happened in Montgomery. His testimony, summarized except when quoted, is narrated below.\nOn 7 December 1972, in response to a call from headquarters, he went to the office of Lt. Buchli, his supervisor. Buchli and defendant were sitting in Buchli\u2019s office. Defendant was drinking a cup of coffee and was crying. Buchli told him that defendant had a problem and asked him to see if he could help defendant. When he asked \u201cwhat was his problem,\u201d defendant told Cunningham that \u201che had killed his wife on the previous night in Greensboro, North Carolina.\u201d He then stopped defendant from making any further statement and advised him orally of his constitutional rights. He and the defendant then went back to his office or interrogation room. There he read from a card the constitutional rights of defendant and had defendant read back his constitutional rights as stated on the card. Defendant read \u201cin a competent manner.\u201d Defendant stated that he understood his constitutional rights and thereupon signed the waiver of rights statement admitted in evidence as State\u2019s Exhibit No. 17. After designating when and where the statement is made, and that \u201c[t]he charge is homicide,\u201d the statement sets forth in detail each of the constitutional rights delineated in Miranda. The following words appear immediately above defendant\u2019s signature: \u201cI fully understand the foregoing statement and do willingly agree to answer questions. I understand and know what I am doing. No promises or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.\u201d This statement was signed in Cunningham\u2019s presence at 11:05 a.m.\nDefendant then told Cunningham that \u201che knew [his wife] was dead because he shot her once and she fell and he shot her two or three more times.\u201d\nDuring their conversation, defendant told Cunningham that the pistol which he had used was in his car, under the front seat. He took defendant back to Buchli while he (Cunningham) made a phone call. Buchli and defendant went downstairs and came back with the pistol which defendant had volunteered to get for them. \u201cIt was a nickle silver .32 Smith and Wesson long Arminus revolver,\u201d bearing Serial Number 149320 \u201con the swing-out.\u201d Defendant turned over this pistol to Cunningham and identified it as the weapon with which he had shot his wife. The pistol was admitted into evidence as State\u2019s Exhibit No. 18.\nCunningham called Greensboro and talked to Detective Schmidt, who advised him that there was a warrant for Jimmy-Crews charging him with murder and requested that defendant be held for the Greensboro Police Department.\nFollowing the brief oral statement made by defendant, defendant was afforded an opportunity \u201cto be fed, washed, cleaned up, and relieve himself.\u201d At 12:40 p.m., after having been again fully advised of his constitutional rights, defendant signed a waiver of rights form exactly like the one he had previously signed and shortly thereafter made a narration of facts which was reduced to writing and signed by him. This second waiver of rights form and defendant\u2019s written statement were identified as defendant\u2019s Exhibit No. 1 and defendant\u2019s Exhibit No. 2, respectively. The written narrative, defendant\u2019s Exhibit No. 2, differs from oral statements attributed to defendant by Cunningham in respects noted below.\nEvidence offered by defendant consists of (1) his testimony, (2) the testimony of four witnesses to the effect defendant\u2019s general reputation is good, and (3) defendant\u2019s Exhibits Nos. 1 and 2.\nSummarized, except when quoted, defendant testified as narrated below.\nHe went to his mother-in-law\u2019s house to talk to his wife and get her to come home. He knocked on the door. Mrs. Hemp-hill opened the door and let him in. When he walked inside his wife walked over to him and asked what he wanted. His reply was that he wanted to talk to her. Mrs. Hemphill was standing to his left and Jevetta approached him and put her hands on his sweater at the place where he had the pistol. She hollered, \u201c[h]e\u2019s got a gun.\u201d Mrs. Hemphill grabbed him. He pulled the gun out. In his struggle with Mrs. Hemphill the gun went off, possibly two or three times. He heard the shots, looked up and saw his wife. She \u201cwas kind of facing us\u201d but \u201cwas falling on the floor\u201d and \u201cthat was when [he] left.\u201d\nDefendant testified that he didn\u2019t \u201creally know why [he] took the gun out of [his] pants.\u201d He \u201cjust thought maybe [his] mother-in-law was going to try to get the gun.\u201d He \u201cdid not at any time get down over [his] wife to [his] recollection, as [his] mother-in-law [had] testified about.\u201d He didn\u2019t \u201cbelieve that [he] did that.\u201d\nAt the Police Station in Montgomery he told \u201cthe first detective that [he] talked to that [he] believed [he] had killed [his] wife.\u201d He was told to sit down and some coffee was brought to him. Detective Cunningham was called and soon came into the room. In answer to Cunningham\u2019s question, \u201c[w]hat is the problem?\u201d, defendant told Cunningham \u201cthat [he] thought that [he] had killed [his] wife.\u201d When Cunningham asked, \u201cWell, how do you know?\u201d, defendant told him \u201cthat [he] seen her falling on the floor.\u201d When asked how many times defendant shot, defendant told him \u201ctwo or three or four times.\u201d Cunningham suggested that it might not be as serious as defendant thought because he had observed cases where people were still alive from that many wounds or shots and that he would call the Greensboro Police Department. While Cunningham was making this telephone call, defendant went with the other detective and got the gun. Cunningham returned, bringing word that defendant\u2019s wife was dead. Then defendant was taken to a small cell and was brought some food and some coffee. Later, he signed defendant\u2019s Exhibit No. 1 and defendant\u2019s Exhibit No. 2. Defendant identified the signature on State\u2019s Exhibit No. 17 as his signature but testified he didn\u2019t remember signing it.\nDefendant\u2019s testimony on cross-examination includes the following:\nAfter his telephone conversation with Jevetta, but before he went to his uncle\u2019s filling station and got the .32 pistol, defendant went to \u201cthe post\u201d and \u201chad fellowship with some members,\u201d and there \u201cwas drinking some . . . whiskey.\u201d Later, when he got the pistol he stuck it in his belt and then went over to Greensboro. He knew \u201cthat [he] was not welcome there . . . that the folks that owned the house didn\u2019t want [him] there.\u201d He didn\u2019t \u201cremember Mrs. Hemphill telling her daughter to get out of there.\u201d He did not pull the gun out until Mrs. Hemphill had grabbed him. Jevetta had turned away from him and was going toward the hall. Mrs. Hemphill grabbed him. He pulled the gun away from her, trying to keep her from getting the gun. At this time, \u201cthe gun went off.\u201d He testified: \u201cYes, sir, I had my finger on the trigger. . . . No, sir, I don\u2019t suppose there is anyway in the world to make this gun fire unless I pull that trigger.\u201d During his struggle with Mrs. Hemphill, the gun went off \u201ca few more times.\u201d He did not go over to his wife when she was on the floor and fire shots into her. His wife fell over at the start of the hallway.\nDefendant testified that he didn\u2019t believe he had told Cunningham that he had shot his wife some more after she fell. He testified: \u201cNo, sir, I won\u2019t deny telling him that because I don\u2019t know if I told him that or not.\u201d\nDefendant admitted he had \u201cstruck\u201d his wife \u201ctwo or three times\u201d on prior occasions and that, on one occasion, he had been convicted and sentenced for assaulting her with a deadly weapon.\nDefendant\u2019s Exhibit No. 2 contains no statement to the effect that defendant shot his wife after she had fallen. It contains the following with reference to what occurred at the Hemphill home:\n\u201cI went to the door and they let me in. I just wanted to talk to her. They got to feeling under my sweater and they felt my gun. They got to hollering and screaming and trying to get the gun. While they was trying to get it, I believe I pulled it out.\n\u201cAll of a sudden, the gun went off. I don\u2019t know how many times. It was three or four. I\u2019m not sure. Jevetta fell and I ran. I went to my car and just drove and drove. I got where I couldn\u2019t stand it no more and that\u2019s when I came in here and told you about what happened. I didn't mean to kill her. I just wanted to talk to her.\u201d\nThe court submitted as a permissible verdict: (1) Guilty of murder in the first degree; (2) guilty of murder in the second degree; (3) guilty of involuntary manslaughter; or (4) not guilty.\nThe jury returned a verdict of guilty of murder in the first degree. Judgment imposing a sentence of life imprisonment was pronounced.\nBased on defendant\u2019s affidavit of indigency, the Public Defender was appointed to represent him and did represent him at his preliminary hearing and throughout his trial. After judgment was pronounced, the Public Defender made appropriate appeal entries and ordered the preparation of a transcript for use in preparing defendant\u2019s case on appeal. Upon receipt of the transcript, the Public Defender delivered it to Stephen E. Lawing, Esquire, defendant\u2019s present counsel, who had been privately retained to perfect the appeal and represent defendant in connection therewith. The Public Defender was permitted to withdraw as counsel and was relieved of further responsibility. On account of delay in perfecting the appeal, this Court issued its writ of certiorari and allowed additional time for defendant\u2019s present counsel to perfect the appeal.\nAttorney General Robert Morgan and Assistant Attorneys General Edward L. Eatman, Jr. and Ralf F. Haskell for the State.\nStephen E. hawing for defendant appellant." }, "file_name": "0427-01", "first_page_order": 447, "last_page_order": 462 }