STATE of North Carolina
v.
Walter JONES.
No. 692SC378.
Court of Appeals of North Carolina.
December 17, 1969.*18 Robert Morgan, Atty. Gen., by Richard N. League, Raleigh, Staff Attorney, for the State.
W. L. Whitley, Plymouth, for defendant.
BROCK, Judge.
Defendant assigns as error the refusal of the trial judge to allow his motion for nonsuit renewed at the close of all the evidence. Defendant strenuously argues that the physical facts as disclosed by defendant's evidence clearly establish that the shooting was accidental, that Jethroe Bonner himself caused the shotgun to fire when he snatched it by the barrel. He argues that the size of the wound and the lack of profuse bleeding clearly indicates that the shot was fired at close range, and that this physical fact shows that Bonner pulled the barrel to his own chest as defendant testified. However, defendant overlooks the fact that there is absolutely no evidence in this record to indicate the size of the wound, and no positive evidence of the amount of bleeding. Nevertheless, even if the shot was fired at close range, such a physical fact would also be consistent with the State's evidence that the defendant intended to shoot "Buddy" Boyd, but that *19 he shot the wrong man. Defendant himself testified that it was extremely dark that night and this testimony would tend to explain a misidentification of an intended victim.
It is true that defendant's evidence to some extent contradicts that of the State, but this conflict was for the jury, not the Court, to resolve. Where defendant offers evidence in his own behalf, his assignment of error must be directed to the Court's refusal to grant his motion for compulsory nonsuit at the close of all the evidence. G.S. § 15-173; State v. Cotten, 2 N.C.App. 305, 163 S.E.2d 100. And all of the evidence actually admitted, whether competent or incompetent, including that offered by defendant, if any, which is favorable to the State, must be taken into account and so considered by the Court in ruling upon a motion for nonsuit. State v. Walls, 4 N.C. App. 661, 167 S.E.2d 547.
Defendant further argues that the State failed to offer evidence that defendant intentionally killed the deceased; he relies heavily upon State v. Gregory, 203 N.C. 528, 166 S.E. 387. The holding in Gregory has been amplified as follows: "In State v. Gregory (citation) where the defense was that an accidental discharge of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an intentional killing with a deadly weapon; and since the Gregory case it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression, intentional killing is not used in the sense that a specific intent to kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. (Citations)" State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.
When the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree. State v. Foust, 258 N.C. 453, 128 S.E.2d 889; State v. Gordon, supra. A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder. State v. Meadows, 272 N.C. 327, 158 S.E. 2d 638; State v. Gordon, supra. The intentional use of a deadly weapon, when death proximately results from such use, gives rise to the presumptions. State v. Gordon, supra. When considered in the light of the foregoing principles, and viewing the evidence in the light most favorable to the State, giving to the State the benefit of every reasonable inference that may be drawn, as must be done in passing upon a motion for nonsuit. State v. Adams, 2 N.C. App. 282, 163 S.E.2d 1, we hold that the State's evidence was sufficient to require submitting the case to the jury.
Defendant argues that he is entitled to a new trial because of error in allowing the arresting officer to testify as to inculpatory statements allegedly made to him by defendant without requiring a showing by the State that all of the Miranda warnings were given and that defendant freely, voluntarily and understandingly made the statements. Defendant did not object to the officer's testimony; nor did he in any way indicate that he desired an examination of the officer and findings by the trial judge upon the question. Defendant was content to allow the officer to relate his statements, and he cannot raise this objection for the first time on appeal. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481. We note also that William Hammie, as a witness for the State, testified, without objection, that defendant told him at the scene, "I shot the wrong man."
Defendant assigns as error that the trial judge refused to submit to the jury the question of defendant's guilt of the lesser included offense of manslaughter. "Upon the trial of any indictment the *20 prisoner may be convicted of the crime charged therein or of a less degree of the same crime, * * *." G.S. § 15-170. Where there is evidence of defendant's guilt of a lesser degree of the crime charged in the indictment, the court must submit to the jury the issue of defendant's guilt of such lesser included offense, and the error of failure to submit such issue to the jury is not cured by a verdict convicting defendant of the offense as charged. State v. Moore, 275 N.C. 198, 166 S.E.2d 652. However, the necessity for submitting to the jury the issue of defendant's guilt of a lesser included offense 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. Jones, 264 N.C. 134, 141 S.E.2d 27; State v. Williams, 2 N.C.App. 194, 162 S.E.2d 688. In this case there is no evidence that requires submitting to the jury the issue of his guilt of voluntary manslaughter. Also, there is no evidence of culpable negligence in his handling of the shotgun, and therefore the issue of his guilt of involuntary manslaughter does not arise. Upon the evidence in this case we hold that the trial judge was correct in refusing to submit an issue of manslaughter to the jury.
Defendant assigns as error several portions of the trial judge's instructions to the jury. We have considered the instructions in their entirety, and when read contextually, as must be done, we perceive no error prejudicial to defendant.
If defendant intended to assault "Buddy" Boyd with a deadly weapon, but by mistake assaulted Jethroe Bonner with a deadly weapon, thereby proximately causing Bonner's death, the presumptions would arise that the killing was unlawful and that it was done with malice; and defendant's guilt is the same as though he had killed "Buddy" Boyd. See State v. Heller, 231 N.C. 67, 55 S.E.2d 800; State v. Burney, 215 N.C. 598, 3 S.E.2d 24.
Defendant strongly contended, and his evidence tended to show, that Jethroe Bonner caused his own death by snatching the barrel of the gun to his chest and causing it to fire the fatal shot. Under proper instructions from the Court the jury considered defendant's contention of an accidental shooting, but they resolved the conflict in the evidence against defendant. In our opinion the evidence supports the verdict and the verdict supports the judgment.
No error.
BRITT and VAUGHN, JJ., concur.