STATE of North Carolina
v.
Willie Junior JONES.
No. 3.
Supreme Court of North Carolina.
January 31, 1977.*254 Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. William Woodward Webb, Raleigh, for the State.
William A. Graham, III, Durham, for defendant-appellant.
SHARP, Chief Justice:
Defendant brings forward four assignments of error. Three relate to the testimony of Robert Johnson, a witness called by the State after the close of defendant's evidence. Defendant argues first that Johnson's evidence was inadmissible because it did not contradict the testimony of any defense witness. In making this contention defendant misperceives both the effect of Johnson's testimony and the law governing the order of proof. His entire defense was based on evidence tending to establish an alibi. In support of his contention that he was elsewhere when Mr. Daniels was killed, he called as a witness his brother, James Junior Jones, who testified that he and defendant were at James' residence throughout the night of 4 January 1975 and until 1:30 on the morning of January 5th when he escorted defendant to his door and saw him enter his own house. Johnson, on the other hand, testified that he saw defendant at Mrs. Beasley's apartment around 12:20 a. m. on January 5th.
Johnson's evidence also tended to contradict defendant's evidence in another respect. Vanessa Jones testified that defendant wore a white turtleneck sweater and blue jeans that night and that the sweater was not bloodstained. Johnson testified that when he saw defendant he was wearing a white turtleneck sweater and dark blue pants, and that the "shirt" was bloodstained. (It is not clear from the record whether Johnson meant that the turtleneck or a separate garment was bloodstained.) Thus, Johnson's testimony did contradict defense witnesses and, as such, was properly admitted on rebuttal. However, the order in which Johnson testified is irrelevant to this appeal.
The order of proof and presentation of witnesses is a matter completely within the discretionary control of the trial judge. "The court, to attain the ends of justice, may in its discretion allow the examination of witnesses at any stage of the trial." State v. King, 84 N.C. 737, 741 (1881). Accord, In re Westover Canal, 230 N.C. 91, 52 S.E.2d 225 (1949); State v. Strickland, 229 N.C. 201, 49 S.E.2d 469 (1948); Miller v. Greenwood, 218 N.C. 146, 150, 10 S.E.2d 708, 710 (1940); 4 Strong's N.C. Index 3d Criminal Law § 93 (1976). There was no abuse of judicial discretion in this case.
Defendant's second contention is that in allowing Johnson to testify he saw blood on defendant's shirt the judge erroneously permitted him to state a conclusion based on facts not within his personal knowledge. This contention is also without merit.
The average layman is familiar with bloodstains; they are a part of common experience and knowledge. When a witness says he saw blood he states an opinion based on his observations, and most likely it would be exceedingly difficult for him to describe the details which led him to conclude that the stains were blood. When he testifies they looked like blood to him he has stated his conception. "This Court has long held that a witness may state the `instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.' Such statements are usually referred to as shorthand statement of facts." State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975). See 1 Stansbury's North Carolina Evidence § 125 (Brandis rev. ed. 1973). The Court did not err in admitting this testimony.
Nor did the judge err when, in recapitulating Johnson's evidence, he stated *255 that the witness testified, "at the time he [Johnson] saw him [defendant] he was wearing a white turtleneck sweater and had blood on his shirt." The judge did no more than repeat what Johnson had said. Such a summary of testimony was not a comment on the evidence within the meaning of G.S. 1-180.
Defendant's first three assignments of error are overruled.
In his charge the trial judge instructed the jury to return one of three verdicts: Guilty of murder in the first degree, guilty of murder in the second degree, or not guilty. Defendant's final assignment of error is that the judge erred in failing to submit the issue of his guilty of manslaughter. This assignment has no merit.
Murder in the second degree, the crime for which defendant was convicted, is the unlawful killing of a human being with malice but without premeditation and deliberation. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Cousins, 289 N.C. 540, 223 S.E.2d 338 (1976); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Kea, 256 N.C. 492, 124 S.E.2d 174 (1962). Where all the evidence tends to show a killing resulting from the intentional use of a deadly weapon, and there is no evidence which will support a finding that the killing was done in the heat of passion on sudden and sufficient provocation or that the defendant used excessive force while fighting in self defense, the law of this State requires the trial judge to instruct the jury that if they are satisfied beyond a reasonable doubt that defendant intentionally inflicted a wound upon the decedent with a deadly weapon which proximately caused his death it would be their duty to return a verdict of guilty of murder in the second degree. State v. Hankerson, 288 N.C. 632, 651, 220 S.E.2d 575, 589 (1975).
In this case all the evidence for the State tended to show that defendant went to the home of the deceased, an elderly black man, for the purpose of collecting money from him; that when defendant ascertained Daniels had no money he deliberately and intentionally killed him with knives and a heavy shovel, all deadly weapons, after having stated his intention to do so. There was not a scintilla of evidence that defendant acted either in the heat of passion on sudden provocation or in self defense. Defendant's defense was an alibi. Neither the State nor defendant adduced any evidence which would support a verdict of manslaughter, and it would have been improper for the court to have submitted the issue. See State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971). "The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954). None of the evidence adduced would support or allow a submission of the charge of manslaughter to the jury.
Defendant has had a fair trial, free of prejudicial error. The State's evidence made out against him a brutal case of murder in the first degree. G.S. 14-17 (Cum. Supp.1975); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970). A lenient jury, although rejecting his evidence of alibi, convicted him of the lesser offense of second degree murder. He has no cause to complain.
No Error.