{ "id": 8561233, "name": "STATE OF NORTH CAROLINA v. RUFUS COLEY WATSON, JR.", "name_abbreviation": "State v. Watson", "decision_date": "1975-05-06", "docket_number": "No. 65", "first_page": "147", "last_page": "163", "citations": [ { "type": "official", "cite": "287 N.C. 147" } ], "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": "158 S.E. 2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572457 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0246-01" ] }, { "cite": "160 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575701 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0509-01" ] }, { "cite": "212 S.E. 2d 106", 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441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574497 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0174-01" ] } ], "analysis": { "cardinality": 1513, "char_count": 36001, "ocr_confidence": 0.572, "pagerank": { "raw": 3.480363793583108e-07, "percentile": 0.8817060376879116 }, "sha256": "8726fbe5958dd68e67385d270fc1ac2140742f1d89db74df2261a521495b4cb8", "simhash": "1:9fc1d406363f35a9", "word_count": 6069 }, "last_updated": "2023-07-14T16:20:34.133436+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. RUFUS COLEY WATSON, JR." ], "opinions": [ { "text": "COPELAND, Justice.\nDefendant has brought forward thirteen (13) of thirty-four (34) assignments of error in his brief, the others having been abandoned. Rule 28, Rules of Practice in the Supreme Court. Investment Properties v. Allen, 281 N.C. 174, 188 S.E. 2d 441 (1972); Knutton v. Cofield, 273 N.C. 355, 160 S.E. 2d 29 (1968); Pendergrass v. Massengill, 269 N.C. 364, 152 S.E. 2d 657 (1967).\nDefendant contends in his first series of assignments (Nos. 25, 30 and 33) that the trial court erred in charging the jury as to the type of provocation that could mitigate the killing to voluntary manslaughter. Specifically, defendant excepted and assigned error to the following italicized portions of the court\u2019s charge:\n(1) After summarizing the evidence, and prior to fully instructing on first-degree murder, the court stated: \u201c [L] et me say here, that mere words will not form a justification or excuse for a crime of this sort. ...\u201d\n(2) In instructing the jury on voluntary manslaughter, the court stated: \u201c[T]he defendant must satisfy you that this passion was produced by acts of Samples which the law regards as adequate provocation. This may consist of anything which has a natural tendency to produce such passion in a person of average mind and disposition. However, words and gestures alone, where no assault is made or threatened, regardless of how insulting or inflammatory those words or gestures may be, does not constitute adequate provocation for the taking of a hrnnan life; . .\nDefendant brings forward two distinct, yet closely related, arguments in support of these assignments. We shall proceed to consider these contentions in the order set forth in defendant\u2019s brief.\nA. Mere Words as Sufficient Legal Provocation.\nDefendant concedes that the above italicized portions of the court\u2019s charge represent a correct statement of the common law, accepted and recognized as the law of this State from the first reported cases. See, e.g., State v. Tackett, 8 N.C. 210, 219 (1820); State v. Merrill, 13 N.C. 269 (1829) ; State v. Hill, 20 N.C. 629, 635 (1839) ; State v. Jarrott, 23 N.C. 76, 82 (1840) ; State v. Barfield, 30 N.C. 344, 349 (1848) ; State v. Howell, 31 N.C. 485 (1849). See also 7 Encyclopedic Digest of N. C. Reports, Homicide \u00a7 39 (1918). Defendant further concedes that this rule is almost uniformly recognized throughout the United States. See, e.g., Annot., 2 A.L.R. 3d 1292 (1965) ; 40 Am. Jur. 2d Homicide \u00a7 64 (1968) ; 40 C.J.S. Homicide \u00a7 47 (1944). Nonetheless, defendant contends that the doctrine in \"this State has gradually evolved into a per se rule that is not in accord with early judicial pronouncements of this Court. Therefore, he urges us to modify the present rule. In support of this contention, defendant relies heavily on language contained in the following three cases: State v. Norris, 2 N.C. 429 (1796) ; State v. Tackett, supra; and State v. Jarrott, supra.\nInitially, we point out that State v. Norris, supra, is not an opinion of this Court. It is simply a summarized report of the actual trial of defendant over which Judges Williams and Haywood jointly presided as circuit superior court judges. There were only four such judges in this State at that time and further there was no appellate court. See Clark, C.J., History of the Supreme Court of North Carolina, 177 N.C. 617, 619 (1919). The language defendant cities in his brief as the opinion of the Court is merely Judge Haywood\u2019s charge to the jury. We note that in his separate charge, Judge Williams told the jurors that he disagreed with certain portions of the law as previously stated by Judge Haywood and proceeded to instruct in accord with his own views. Accordingly, under these particular facts, this reported proceeding has no precedential value.\nOn the other hand, both Tackett and Jarrott are decisions of this Court and both contain language that tends to support defendant\u2019s contention. However, the exceptions to the \u201cmere words\u201d doctrine recognized in both- cases are totally without relevance today. In any event, any language in these cases not in accord with the following statement of Justice Stacy (later Chief Justice), speaking for the Court in State v. Benson, 183 N.C. 795, 799, 111 S.E. 869, 871 (1922), is expressly overruled. \u201cThe legal provocation which will reduce murder in the second degree to manslaughter must.be more than words; as language, however abusive, neither excuses nor mitigates the killing, and the law does not recognize circumstances as a legal provocation which in themselves do not amount to an actual or threatened assault. [Citations omitted.]\u201d This assignment of error as it relates to the mere words doctrine is overruled.\nB. What Constitutes an Assault?\nDefendant contends that since the trial court inserted the \u201cmere words\u201d doctrine into its charge it constituted prejudicial error not to proceed further and charge on what he calls the law of assault from provoking language. Defendant relies on the following cases in support of this argument: State v. Perry, 50 N.C. 9 (1857) ; State v. Robbins, 78 N.C. 431 (1878) ; State v. Chavis, 80 N.C. 353 (1879) ; State v. King, 86 N.C. 603 (1882); State v. Fanning, 94 N.C. 940 (1886) ; Saunders v. Gilbert, 156 N.C. 463, 72 S.E. 610 (1911); State v. Kennedy, 169 N.C. 326, 85 S.E. 42 (1915) ; State v. Crisp, 170 N.C. 785, 87 S.E. 511 (1916); State v. Baldwin, 184 N.C. 789, 114 S.E. 837 (1922); State v. Strickland, 192 N.C. 253, 134 S.E. 850 (1926) ; State v. Maney, 194 N.C. 34, 138 S.E. 441 (1927) ; State v. Robinson, 213 N.C. 273, 195 S.E. 824 (1938) ; State v. Hightower, 226 N.C. 62, 36 S.E. 2d 649 (1946) ; State v. Franklin, 229 N.C. 336, 49 S.E. 2d 621 (1948); State v. McLawhorn, 270 N.C. 622, 155 S.E. 2d 198 (1967). This contention has no merit. Furthermore, it is logically inconsistent with the rule that language, no matter how abusive, is never sufficient legal provocation to mitigate a homicide.\nMany of the above cited cases involve the defendant\u2019s right to the benefit of perfect self-defense and deal specifically with the question of whether the defendant was at fault in bringing on the difficulty. The test, long employed in such cases, is whether the defendant used language calculated and intended to bring on the fight. If he did, then he is deemed to have been at fault and loses the benefit of perfect self-defense. See. e.g., State v. Robinson, supra; State v. Crisp, supra; State v. Lancaster, 169 N.C. 284, 84 S.E. 529 (1915) ; State v. Rowe, 155 N.C. 436, 71 S.E. 332 (1911) ; State v. Fanning, supra; State v. Davis, 80 N.C. 351 (1879); State v. Robbins, supra; State v. Perry, supra.\nState v. Hightower, supra, is an excellent example of the legal consequences of abusive language in this situation. In that case, defendant and deceased were both inmates confined in a prison camp located in Wilkes County. Sometime prior to the homicide, defendant had been placed in solitary confinement for a number of days. Defendant believed this confinement resulted from a report deceased had made to prison officials regarding alleged acts of sex perversion on his part. On the day of the killing, defendant came out into the prison yard where the deceased and others were passing a ball. He put his arm around the deceased and walked with him back into the cell block. Thereafter, defendant tripped and stabbed the deceased, and when, before dying, the deceased managed to get up and run to the sink, defendant caught up with him and stabbed him five or six more times, stating: \u201cG\u2014 d\u2014 you, I told you I was going to kill you.\u201d Defendant contended that deceased had called him a \u201cG\u2014 d\u2014 black s.o.b.\u201d and that this had provoked the assault. Defendant was tried before Judge Bobbitt (later Associate Justice and Chief Justice of this Court) at the August 1945 Session of Wilkes County Superior Court. Upon a verdict finding him guilty of first-degree murder, defendant appealed to this Court and assigned as errors, inter alia, the portion of the court\u2019s charge on the \u201cmere words\u201d doctrine and the failure of the court to charge on excusable homicide. This Court, in an opinion by Justice Barnhill (later Chief Justice), affirmed the judgment and answered these contentions as follows:\n\u201cThe court further instructed the jury \u2018that legal provocation that will reduce murder in the second degree to manslaughter must be more than mere words, for language, however abusive, neither excuses nor mitigates the killing,\u2019 and \u2018the law does not recognize circumstances as a legal provocation which in themselves do not amount to an assault or a threatened assault.\u2019 Such is the law in this jurisdiction. [Citations omitted.] Here it was the deceased and not the defendant who is alleged to have used abusive language and thus induced the assault which resulted in death. S. v. Robinson, 213 N.C., 273, 195 S.E., 824; S. v. Rowe, 155 N.C., 436, 71 S.E., 332; S. v. Crisp, 170 N.C., 785, 87 S.E., 511.\u201d 226 N.C. at 65, 36 S.E. 2d at 651. (Emphasis supplied.)\nThese decisions establish the following rules as to the legal effect of abusive language: (1) Mere words, however abusive, are never sufficient legal provocation to mitigate a homicide to a lesser degree; and (2) A defendant, prosecuted for a homicide in a difficulty that he has provoked by the use of language \u201ccalculated and intended\u201d to bring on the encounter, cannot maintain the position of perfect self-defense unless, at a time prior to the killing, he withdrew from the encounter within the meaning of the law. These two rules are logically consistent and demonstrate that abusive language will not serve as a legally sufficient provocation for a homicide in this State.\nThese well-settled rules are clearly controlling in the instant case. Hence, if defendant had provoked an assault by the deceased through the use of abusive language and had thereafter killed the deceased, then it would have been for the jury to determine if the lanuguage used by defendant, given the relationship of the parties, the circumstances surrounding the verbal assertions, etc., was \u201ccalculated and intended\u201d to bring on the assault. If the jury had found this to be the case, then defendant would not have had the benefit of the doctrine of perfect self-defense, even though the deceased instigated the actual physical attack. But, here there was no evidence that defendant killed the deceased in self-defense. In fact, all of the evidence tends to show that the fatal attack was brought on by the continued verbal abuses directed toward defendant by the deceased. Under these circumstances, there was no basis for a jury determination of whether any of the words were \u201ccalculated and intended\u201d to bring on the difficulty. Therefore, we find no error in the court\u2019s instructions or in the court\u2019s failure to give instructions. These assignments are overruled.\nAt this point, we note that in those few jurisdictions that permit abusive language to mitigate the degree of homicide, the majority hold that the words are only deemed sufficient to negate premeditation, thereby reducing the degree of homicide from first to second. Most of these courts reason that since the deceased had made no attempt to endanger the life of the accused, the action of the latter in meeting the insulting remarks with sufficient force (deadly or otherwise) to cause the death of the former, was beyond the bounds of sufficient retaliation to constitute sufficient provocation to reduce the homicide to manslaughter. See Annot., 2 A.L.R. 3d 1292, 1308-10 (1965). Although we expressly decline to adopt this minority view, we note that the jury in the instant case apparently applied the same reasoning and found defendant guilty of second-degree murder. Thus, even if the minority rule applied in this State, defendant would not be entitled to a new trial as a result of the instructions here given.\nDefendant next contends (Assignment No. 29) that the trial court committed prejudicial error in charging the jury as follows:\n\u201cNow, ladies and gentlemen of the jury, this case is to be tried by you under the laws of the State of North Carolina, and not upon the rules and regulations and customs and unwritten code that exists within the walls of the North Carolina Department of Correction. I can\u2019t charge you on that law because I don\u2019t know that law. I think I know this one, and this is the law that you are trying this case under.\u201d\nDefendant argues that this instruction \u201ctends to discount as a matter of law all of the factual information\u201d that the jury was \u201centitled to consider, not as a law, but as a part of the factual background situation within which the incident took place.\u201d We find nothing in the charge to support such an inference. During the course of the trial, several of the State\u2019s witnesses (either present or former prison inmates) testified about a \u201cprison code,\u201d i.e., a set of unwritten rules developed by the prisoners themselves. For example, one of the State\u2019s witnesses made the following statements on cross-examination:\n\u201cIn the prison system, if Watson had not fought after Samples had called him nigger, nigger, and talked about his mother, I guess, you know, everybody else probably would be jugging at him. What I mean by \u2018jugging at him,\u2019 I mean, messing with him, you know. Taking advantage of the fact that he won\u2019t stand up for himself. It is important that you stand up for yourself in the system because if you don\u2019t, somebody might get you down in the shower, you know. You might get dead-ended. It means if you don\u2019t take up for yourself, everybody picks on you.\u201d\nApparently, standing up for oneself was a vital part of this so-called \u201cprison code.\u201d In this context, the import of the above instruction was clearly to inform the jurors that the case\u2014 like \u00bf11 other criminal cases tried in the North Carolina General Courts of Justice \u2014 had to be tried under the laws of this State and not upon any unwritten prisoners\u2019 code that existed within the walls of North Carolina\u2019s prisons. It is certainly not error for a trial judge to so instruct a jury. Furthermore, it appears that defendant\u2019s conduct even constituted a violation of the prisoners\u2019 code. We refer to the following re-direct testimony of the same witness previously quoted above: \u201cStand up for yourself in the prison system would not necessarily include using a knife. He could have run over there and fought with bare fists, that would have been standing up for himself\nDefendant\u2019s contention under this assignment is without merit. Therefore, it is overruled.\nDefendant next assigns error (No. 32) to that portion of the trial court\u2019s charge on the element of first-degree murder that requires a defendant to act with deliberation. Specifically, defendant excepted to the following portion of the court\u2019s charge :\n\u201cA cool state of blood does not mean the absence of passion or emotion, but it means that notwithstanding that anger or emotional state, unless the emotion was such at the time to disturb the defendant\u2019s faculties and reason to the extent that he could not form a deliberate purpose and control his actions.\u201d\nDefendant argues that the above language tends \u201cto make the instruction one in which the Defendant is required to be \u2018temporarily deprived of intellect, and therefore not an accountable agent,\u2019 rather than swayed by passion.\u201d In substance, it appears that defendant\u2019s objection is directed to the meaning of \u201cdeliberation\u201d as that term applies to first-degree murder. In State v. Benson, supra, in an opinion by Justice Stacy (later Chief Justice), this Court defined deliberation as follows:\n\u201cDeliberation means that the act is done in a cool state of the blood. It does not mean brooding over it or reflecting upon it for a week, a day, or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation.\u201d 183 N.C. at 798, 111 S.E. at 871.\nAccord, State v. Johnson, supra; State v. Reams, 277 N.C. 391, 178 S.E. 2d 65 (1970), cert. denied, 404 U.S. 840 (1971) ; State v. Lamm, 232 N.C. 402, 61 S.E. 2d 188 (1950) ; State v. Steele, 190 N.C. 506, 130 S.E. 308 (1925).\nThis Court has also defined \u201ccool state of blood\u201d as follows:\n\u201c \u2018Cool state of blood\u2019 does not mean the absence of passion and emotion, but an unlawful killing is deliberate and premeditated if done pursuant to a fixed design to kill, notwithstanding that defendant was angry or in an emotional state at the time unless such anger or emotion was such as to disturb the faculties and reason. [Citations omitted.]\u201d State v. Britt, 285 N.C. 256, 262-63, 204 S.E. 2d 817, 822 (1974).\nAlthough the Benson and Britt instructions are preferred, we find no fundamental difference between them and the instruction given in the instant case. In any event, since defendant was convicted of murder in the second degree, it is clear that any error in the judge\u2019s charge concerning the elements of first-degree murder is harmless. See, e.g., State v. Artis, 233 N.C. 348, 64 S.E. 2d 183 (1951) ; State v. Suddreth, 230 N.C. 239, 52 S.E. 2d 924 (1949) ; State v. Cade, 215 N.C. 393, 2 S.E. 2d 7 (1939) ; State v. Evans, 177 N.C. 564, 98 S.E. 788 (1919). This assignment is accordingly overruled.\nIn his next series of assignments (Nos. 5, 6, 7 and 8) defendant contends that the court erred in allowing, over his objection, testimony as to defendant\u2019s possession of a kitchen paring knife in violation of the rules of Polk Youth Center. This evidence was brought out by the district attorney during the redirect examination of two of the State\u2019s witnesses. Defendant argues that this evidence \u201ccomes within the prohibition against collateral circumstantial evidence to show the guilt of the defendant as to a particular crime,\u201d and that, in any event, the evidence was irrelevant and its admission was highly prejudicial. We disagree.\n\u201cEvidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime.\u201d 1 Stansbury, N. C. Evidence \u00a7 91 (Brandis Rev. 1973) (Emphasis supplied.) Accord, State v. Jones, 278 N.C. 88, 178 S.E. 2d 820 (1971) ; State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969) ; State v. Norkett, 269 N.C. 679, 153 S.E. 2d 362 (1967) ; State v. Choate, 228 N.C. 491, 46 S.E. 2d 476 (1948).\nIn State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954), this Court, in an opinion by Justice Ervin, listed eight exceptions to the general rule of exclusion of evidence of a crime other than the one charged. This testimony clearly falls within the purview of Exception No. 2, i.e., a collateral act of the accused that tends to establish a specific intent or mental state that is an element of the crime charged. Certainly defendant\u2019s possession of the knife in contravention of well-known prison rules was admissible as circumstantial evidence of a planned killing. The \u201cacid test\u201d here is the logical relevance of this testimony to the first-degree murder prosecution. See State v. McClain, supra at 177, 81 S.E. 2d at 368. We believe this test has been met. See generally E. Cleary, McCormick on Evidence \u00a7 185 (1972). Even assuming, arguendo, that the admission of this testimony was error, the error was clearly harmless. \u201cWhere there is abundant evidence to support the main contentions of the State, the admission of evidence, even though technically incompetent, will not be held prejudicial when defendant does not affirmatively make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result. [Citations omitted.]\u201d State v. Williams, supra at 89, 165 S.E. 2d at 489. Accord, Gasque v. State, 271 N.C. 323, 340, 156 S.E. 2d 740, 752 (1967) ; State v. Temple, 269 N.C. 57, 66, 152 S.E. 2d 206, 212 (1967). These assignments are therefore without substance and hence without merit. They are overruled.\nDefendant next contends (Assignment No. 4) that the trial court committed prejudicial error in allowing the State\u2019s motion to strike certain testimony and in instructing the jury to disregard that testimony.\nThe following occurred on re-cross examination of the State\u2019s witness Wandzillak:\n\u201cI had the impression that Samples had thought Watson was scared when he was lying on top of his bunk on his back. In crossing the corridor it was not a casual walk but a rush.\n\u201cQ. How would you describe it?\n\u201cA. Spirit of the moment.\n\u201cMr. Mitchell: Objection, motion to strike.\n\u201cCourt: Allowed. You may disregard that answer of the witness.\u201d\nDefendant argues that the above statement was admissible as either a shorthand statement of the facts, or as lay testimony on the mental capacity and condition of the defendant. We agree. Opinion evidence is always admissible when the facts on which the opinion or conclusion is based cannot be so described that the jury will understand them sufficiently to be able to draw their own inferences. See 1 Stansbury, N. C. Evidence \u00a7 125 (Brandis Rev. 1973), and numerous cases cited therein. However, any error there may have been in sustaining the objection and motion to strike is not deemed sufficiently prejudicial to justify the award of a new trial. Cf. State v. Gray, 268 N.C. 69, 84, 150 S.E. 2d 1, 12 (1966).\nIn his next two assignments (Nos. 9 and 28) defendant contends that the trial court erred in charging the jury in violation of G.S. 1-180 by an imperfect or an incorrect summation of the evidence. Specifically, defendant excepted to the following italicized portions of the charge:\n\u201cThat shortly prior to that time Mr. Watson and Mr. Samples had been first talking and later arguing, as I recall the evidence, sitting on Mr. Watson\u2019s bunk; that Mr. Samples left Mr. Watson\u2019s bunk and went to his bunk procuring a cigarette from another inmate on the way and lay on his bunk smoking the cigarette up to