STATE of North Carolina
v.
Ismael VEGA.
No. 784SC1003.
Court of Appeals of North Carolina.
March 20, 1979.*96 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen., Thomas H. Davis, Jr., Raleigh, for the State.
Frazier & Moore, by Thomasine E. Moore, New Bern, for defendant.
ROBERT M. MARTIN, Judge.
On appeal, defendant contends that the trial court erred in (1) failing to disqualify himself as he was the presiding judge at an earlier trial when a mistrial was declared; (2) failure to sever the charges, thus allowing the State to introduce collateral facts; *97 (3) denying defendant's motion to sever on the grounds that the court was without jurisdiction to hear misdemeanor charge of child abuse; (4) admitting the introduction of allegedly prejudicial photographs; (5) denying motion for nonsuit; (6) instructing the jury on "acting in concert" in the absence of evidence of conspiracy; and (7) denying motion to set aside verdict motion for new trial and arrest of judgment. With regard to each of these contentions we find no error.
Defendant contends that since the trial judge at the first trial, when declaring mistrial, ruled that the emotional outburst heard by the jury could either consciously or subconsciously prevent them from rendering a verdict solely on the evidence, then this same finding should also apply to the trial judge. This assignment of error is without merit.
G.S. 15A-1223 states that the judge, upon motion of either the State or the defendant, must disqualify himself from presiding over a criminal trial for any of the following reasons:
1. If the judge is prejudiced against the moving party or in favor of the adverse party; or
2. If the judge is a witness for or against anyone of the parties in the case; or
3. If the judge is closely related to the defendant by blood or marriage; or
4. If for any other reason the judge is unable to perform the duties required of them in any partial manner.
There is no evidence in the record elicited by defense counsel or any other party of any prejudice or bias displayed by the presiding judge. There is no showing that in the previous trial the judge reacted strongly to the outburst of the decedent's mother, nor is there any showing that the judge displayed "marked personal feeling" toward the accused. See, In re Paul, 28 N.C.App. 610, 222 S.E.2d 479 (1976).
The trial judge, answering the charges raised by the defense counsel, stated that he did not know of any reason why he should disqualify himself. Furthermore, we note that the record discloses the motion for disqualification was made the day the trial began and that no good cause was shown for counsel's failure to file his motion within the time limit set forth in G.S. 15A-1232(d) which requires that the motion to disqualify a judge must be filed no less than five days before the time the case is called for trial.
Defendant contends that the introduction of collateral matters with respect to child abuse prejudiced the defendant's trial as it related to the felony of second degree murder. Defendant contends that the cause of the child's death was a brain hemorrhage and the bruises and burns observed over part of the child's body were not symptoms which caused death and its admission in evidence was prejudicial to defendant. We disagree. In State v. Fowler, 230 N.C. 470, 53 S.E.2d 853 (1949), Chief Justice Stacy, speaking for the Court, stated:
Proof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge or scienter or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions. [Citations omitted.] Id. at p. 473, 53 S.E.2d 855.
The victim was a five-year-old child who died as a result of injuries to her head which could have been caused by a beating administered on one or several occasions by the defendant. Previous acts of physical abuse are competent to show defendant's predisposition to commit the violent act complained of in the indictment. Moreover, the evidence of child abuse was competent to show the state of mind necessary to establish malice, an essential element of second degree murder. See, State v. Drake, 8 N.C.App. 214, 174 S.E.2d 132 (1970).
Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts [and] declarations of the accused as tend to establish the requisite mental intent *98 or state, even though the evidence discloses the commission of another offense by the accused. [Citations omitted.] State v. McClain, 240 N.C. 171, 175, 81 S.E.2d 364, 366 (1954).
Thus, the acts which tend to show child abuse also tend to show intent and design of the defendant with respect to the death of the child and are competent in evidence.
We disagree with defendant that the court was without jurisdiction to hear the misdemeanor charge of child abuse. G.S. 15A-926 provides that:
Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.
The crimes charged were obviously continuing criminal acts which permit the admission in evidence of each in the trial of the other. The acts perpetrated by the defendant which led to the misdemeanor charge of child abuse were the same acts and transactions which also resulted in the death of the child. Therefore, the two offenses were properly joined under G.S. 15A-926.
The defendant's contention that the court erred by allowing into evidence photographs of the deceased is without merit and his assignments of error based thereon are denied.
Defendant contends that the court erred in denying his motion for nonsuit. This assignment of error is without merit and is overruled. The uncontradicted evidence tends to show that the deceased child was in good health when placed with defendant's wife. She was thereafter in the care and custody of both defendant and his wife as observed by a number of witnesses up to and at the time of her death. The injuries observed by the physicians were neither natural or accidently caused or selfinflicted. According to the pathologist, the cause of death was subdural hemorrhage and was due to a blow or blows to the head. A blow by a hand or fist could cause a cerebral hemorrhage. The defendant admitted that he had beaten the child more than once. The evidence for the State, considered in the light most favorable to it, was sufficient to withstand the motion for nonsuit.
The inference that defendant may have acted in concert with another person (i. e. his wife) in the act(s) of physical abuse resulting in the death of the deceased sufficiently supported the court's instructions on the principle of acting in concert and was without error.
We are of the opinion that it was error for the trial judge to instruct the jury on voluntary manslaughter and to submit it to the jury for their deliberation. Voluntary manslaughter is usually defined as an intentional killing, done without premeditation or deliberation, and without malice. The element of malice, which is a necessary component of second degree murder, is usually negatived in the voluntary manslaughter context by either heat of passion suddenly aroused upon adequate provocation or by the situation where the defendant has an imperfect right of self-defense. See, State v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967); State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978). In this case, involving the death of a child from the so-called "battered child" syndrome, where there was a great disparity in age and size between the victim and her slayer, and particularly where the slayer stood in loco parentis with the child, we are of the opinion that as a matter of law adequate provocation could not be found to exist so as to justify submission of voluntary manslaughter where the evidence showed that the defendant beat and abused a child unto its death. See, State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); also see, State v. Trott, 190 N.C. 674, 130 S.E. 627 (1925).
In the present case there is abundant evidence that the child had been beaten viciously, and had been severely burned, these punishments ostensibly being made to "discipline" the child. The evidence would have been ample to support a conviction of second degree murder. There was no evidence *99 before the court adequate in law which would have justified submission of voluntary manslaughter as a lesser included offense. The trial court gave the jury an opportunity which legally they should not have had, to find defendant guilty of a lesser offense. Having been found guilty of a lesser included offense not raised by the evidence, defendant could not have been prejudiced by its submission. The error was manifestly favorable to the defendant and is not reversible. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956).
The remaining assignments of error brought forward by defendant are without merit. Accordingly, they are overruled.
In the trial we find no prejudicial error.
No error.
MITCHELL and ERWIN, JJ., concur.