State v. Hankerson

220 S.E.2d 575 (1975) 288 N.C. 632

STATE of North Carolina
v.
Johnnie B. HANKERSON.

No. 56.

Supreme Court of North Carolina.

December 17, 1975.

Rufus L. Edmisten, Atty. Gen. by Claude W. Harris, Asst. Atty. Gen., Raleigh, for the State.

L. G. Diedrick, Rocky Mount, W. O. Rosser, Whitakers, and Roland Braswell, Goldsboro, for defendant-appellant.

EXUM, Justice.

I

Defendant assigns as error the denial of his motions for judgment as of nonsuit. Judge Arnold's dissent was on the basis that nonsuit should have been allowed. Reviewing this assignment, we consider all of the evidence actually admitted, whether from the State or defendant, in the light most favorable to the State, resolve any contradictions and discrepancies therein in the State's favor, and give the State the benefit of all reasonable inferences from the evidence. State v. Cutler, 271 N.C. 379, 382, 156 S.E.2d 679, 681 (1967). Defendant more specifically urges that this case comes within the rule that, "[w]hen the State introduces in evidence exculpatory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by these statements. While the intentional killing of another with a deadly weapon raises the presumption that the killing was unlawful and done with malice, this rule of law does not mean that the burden of showing an unlawful killing does not rest with the State. When the State's evidence and that of the defendant is to the same effect and tend only to exculpate the defendant, motion for nonsuit should be allowed. State v. Carter, 254 N.C. 475, 119 S.E.2d 461." State v. Johnson, 261 N.C. 727, 730, 136 S.E.2d 84, 86 (1964).

In State v. Johnson, supra, a murder prosecution, the State's only evidence that defendant committed a homicide was a confession that established a perfect self-defense. Circumstantial evidence corroborated the confession. Defendant's evidence at trial was to the same effect. In this context we held defendant entitled to a nonsuit and reversed a conviction for manslaughter. State v. Carter, supra, presented basically the same situation. There was no evidence which tended to contradict or impeach defendant's confession or testimony at trial that she acted lawfully in the defense of another.

The State contends, however, and we agree that this case falls more squarely within the rule that the State is not bound by the exculpatory portions of a confession which it introduces, if there is "other evidence tending to throw a different light on the circumstances of the homicide." State v. Bright, 237 N.C. 475, 477, 75 S.E.2d 407, 408 (1953); see also State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972) and State v. Cooper, 273 N.C. 51, 159 S.E.2d 305 (1968). In State v. Bright, supra, the State introduced defendant's statement that he killed his wife accidently while they were scuffling on the bed. We held, however, that evidence "such as the absence of powder burns, the location and direction of the fatal wound [and], the conduct of the defendant. . ." was sufficient to survive a motion for nonsuit, and we affirmed a manslaughter conviction.

We hold that nonsuit in this case was properly denied in view of evidence which casts doubt on defendant's version of the incident. This evidence is to the effect that: (1) defendant fled the scene at a great rate of speed; (2) defendant originally lied about the gun and decided to tell the truth about it after his wife had turned it in to the police; (3) the deceased had no grease on his hands although defendant claimed the grease spot on his shirt was from being grabbed by the deceased; (4) the deceased was found with a cigarette in one hand, although defendant claims the deceased used two hands against him; (5) the deceased was right-handed although defendant claims that deceased wielded the knife with his left hand; (6) defendant says he was stopped by two persons while the State's evidence was that the deceased, when last seen alive moments before the shooting, was alone; (7) the deceased had never been seen with a knife in his possession similar to the one recovered from defendant's vehicle.

While none of these circumstances taken individually flatly contradicts defendant's statement, taken together they are sufficient to "throw a different light on the circumstances of the homicide" and to impeach the defendant's version of the incident. The State is not bound, therefore, by the exculpatory portions of defendant's statement. The case is for the jury.

II

On cross-examination of the defendant by the district attorney the following occurred:

"Q How many people have you ever shot before?

OBJECTION: OVERRULED: EXCEPTION

DEFENDANT'S EXCEPTION NO. 3.

Q Go ahead and tell us exactly how many?

A I have shot one.

Q Is that all?

A Two.

Q Is that all?

A Yes."

As the cross-examination continued without further objection defendant admitted having been "convicted of whiskey" and "convicted one time of escaping from prison. . . . I have not been convicted of anything else. I have been up once before in North Carolina for assault; this is the second time. That was for shooting. It was in self-defense. I came clear of that." On recross-examination the defendant testified: "I have not been previously convicted of assault. They kept me in jail three or four nights the time the man was hitting me with a stick. Years back a fellow whacked me with a knife and he was shot in the leg but I didn't go to jail for it. I just paid his hospital bill." Apparently with reference to this testimony the trial judge, summarizing the evidence, stated to the jury that the defendant "testified that he had once been convicted of escape and once he was convicted of assault, and you will recall the things he said he had been convicted for."

Defendant now assigns as error: first, the overruling of his objection to the district attorney's question, "How many people have you ever shot before?"; second, failure of the court to strike "defendant's testimony as to any prior arrests that did not result in a conviction"; and third, the statement of the trial judge hereinabove set out recapitulating the testimony of the defendant.

With regard to the district attorney's question defendant properly concedes the right of the State to cross-examine defendant as to specific acts of misconduct, State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972), and properly concedes that unlawfully shooting other people would be such misconduct. Defendant contends, however, that the question was patently asked in bad faith since the district attorney must have been aware that the defendant was acquitted of that charge. Defendant, however, testified that he had shot people on two other occasions only one of which resulted in an acquittal by reason of self-defense. There is no showing in the record that the district attorney in fact knew the official outcome of these assaults. Apparently one of them never came to trial.

As to the trial judge's failure to strike defendant's testimony regarding prior arrests which did not result in convictions, suffice it to say there was no motion to strike any of this testimony. Apparently defendant was satisfied at trial with his full explanation before the jury of the outcome of the two shooting incidents. The trial judge was not required, sua sponte, to strike this testimony. State v. Battle, 267 N.C. 513, 148 S.E.2d 599 (1966).

Although defendant admitted he paid hospital bills for one of his victims, he said also that he "didn't go to jail for it" and that he had "not previously been convicted of assault." The trial judge did it seems inaccurately recapitulate the defendant's testimony on this point. The misstatement is understandable. Nevertheless "inaccurate statements of this character are not ground for a new trial unless called to the court's attention with request that correction be made before the case is submitted to the jury." State v. Revis, 253 N.C. 50, 53, 116 S.E.2d 171, 174 (1960). In State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887 (1949) relied on by defendant on this point, defendant was tried on a charge of carnally knowing his ten year old child. In dictum this Court volunteered the observation that it would have been error for the trial judge to say, in recapitulating the evidence, that defendant "admitted . . . he had been tried and convicted of an assault with intent to commit rape on his daughter Dorline Shelton" unless such an admission appeared in the record. (It does not appear in the opinion but the record reveals that Dorline Shelton was not the prosecutrix, but another daughter of the defendant.) Noting that no exception was taken or assignment of error directed to this portion of the charge, this Court recognized that the defendant may indeed have made such an admission although none appeared in the record. Assuming the correctness of this dictum, the supposed misstatement there considered is clearly distinguishable from the one here. In prosecutions for various kinds of illicit sexual activity, our decisions have been characterized as being "markedly liberal in holding evidence of similar sex offenses admissible" on the question of guilt. 1 Stansbury's North Carolina Evidence 299 (Brandis Rev.1973). It might then be considered that the assumed misstatement in Cantrell was one of a fact bearing directly on defendant's guilt. This Court has said that "a statement of a material fact not shown in the evidence constitutes reversible error" whether or not called to the trial court's attention. State v. McCoy, 236 N.C. 121, 124, 71 S.E.2d 921, 923 (1952). The misstatement here complained of was clearly upon a collateral matter.

These assignments of error are, consequently, overruled.

III

In his final mandate the trial judge failed to reiterate and specify that self-defense was a possible theory of acquittal. Defendant contends that under State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974) this is reversible error. After the jury had been deliberating approximately forty-five minutes, however, they returned to the courtroom to ask for clarification on the distinction between manslaughter and murder in the second degree. In the course of his instructions responsive to this inquiry the trial judge charged in addition as follows:

"Also, I want to instruct you that the charge I gave you as to self-defense would apply equally to manslaughter as it would to second degree murder in that if you find the defendant was justified or excused in the killing because he was acting in self-defense then you would find him not guilty as to either one."

While Dooley does require the trial judge to include in his final mandate the theory of acquittal by reason of self-defense where it has been raised by the evidence, failure here to do so was cured, in our opinion, by the additional instructions. State v. Brooks, 225 N.C. 662, 36 S.E.2d 238 (1945). Certainly the additional instructions render any error of omission in the final mandate harmless beyond a reasonable doubt.

IV

On June 9, 1975, the United States Supreme Court decided Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508, which held that a Maine jury instruction requiring a defendant being tried for murder to prove by a preponderance of the evidence, in order to reduce the murder to manslaughter, that he acted in the heat of passion on sudden provocation, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as that clause was interpreted in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) to require the prosecution to prove beyond a reasonable doubt every fact necessary to constitute a crime. It was subsequently re-explained in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, n. 15, 45 L. Ed. 2d 562 (June 30, 1975) that the right of the defendant to have this burden placed on the State, though not literally expressed in any particular provision of the Constitution, was essential to due process of law in a fair adversary process.

Defendant contends that under the rationale of Mullaney the trial judge's instructions to the jury in this case violate Fourteenth Amendment Due Process. While the trial judge in defining second degree murder and manslaughter and in his final mandate to the jury placed upon the State the burden to prove beyond a reasonable doubt both malice and unlawfulness, i. e., without justification or excuse, he also instructed the jury, in pertinent part, as follows:

"If the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed Gregory Ashe with a deadly weapon, or intentionally inflicted a wound upon Gregory Ashe with a deadly weapon, that proximately caused his death, the law raises two presumptions; first, that the killing was unlawful, and second, that it was done with malice. Then, nothing else appearing, the defendant would be guilty of second degree murder . . . .

"As I told you, you will have to either find the defendant guilty of second degree murder or manslaughter or not guilty. In order to reduce the crime from second degree murder to manslaughter, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that there was no malice on his part. And in order to excuse his act altogether on the grounds of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense. And I will charge you on self-defense in just a moment. But I do want to charge you that to negate malice and thereby reduce the crime to manslaughter, the defendant must satisfy you of three things: first, that he shot Gregory Ashe in the heat of a passion . . . . The second thing he must satisfy you of is that this passion was provoked by acts of Gregory Ashe which the law regards as adequate provocation . . . . And thirdly, that the shooting took place so soon after the provocation that the passion of a person of average mind and disposition would not have cooled.

"To excuse the killing entirely on the grounds of self-defense . . . the defendant must satisfy you of four things: first, that it appeared to the defendant and he believed it to be necessary to shoot Gregory Ashe in order to save himself from death or great bodily harm. . . . The second thing that you must be satisfied of—excuse me—that the defendant must satisfy you of is this, that the circumstances as they appeared to him at the time were sufficient to create such belief in the mind of a person of ordinary firmness . . . . And the third thing the defendant must satisfy you of is that he was not the aggressor. . . . And the fourth thing that the defendant must satisfy you of is that he did not use excessive force . . . .

"If you find that the defendant acted properly in self-defense, he would not be guilty. However, if the defendant though otherwise acting in self-defense used excessive force, the defendant would be guilty of voluntary manslaughter." (Emphases supplied.)

We hold that by reason of the decision in Mullaney the Due Process Clause of the Fourteenth Amendment prohibits the use of our long-standing rules in homicide cases that a defendant in order to rebut the presumption of malice must prove to the satisfaction of the jury that he killed in the heat of a sudden passion and to rebut the presumption of unlawfulness, that he killed in self-defense. The instructions given here insofar as they placed these burdens of proof on the defendant violate the concept of due process announced for the first time in Mullaney. We decline, however, for reasons hereinafter stated, to give Mullaney retroactive effect in North Carolina. We hold that because the trial judge instructed the jury in accordance with our law of homicide as it stood, and in a trial conducted, before the Mullaney decision, the defendant is not entitled to the benefit of the Mullaney doctrine. We will, however, apply the decision to all trials conducted on or after June 9, 1975.

The law of Maine and the precise issue it presented was succinctly stated by the Supreme Court in Mullaney:

"Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder — i. e., by life imprisonment —unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter — i. e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. The issue is whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process." 421 U.S. at 691-92, 95 S.Ct. at 1886 (Emphasis supplied.)

A portion of the trial judge's instructions to the jury in Maine were summarized in Mullaney as follows:

"[T]hat if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. The court emphasized that `malice aforethought and heat of passion on sudden provocation are inconsistent things,' [Appendix to the Record] at 62; thus, by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter. The court then concluded its charge with elaborate definitions of `heat of passion' and `sudden provocation.'" Id. at 686-87, 95 S.Ct. at 1883. (Emphasis supplied.)

Maine's conclusive implication of malice which arose from proof of an unlawful and intentional killing meant simply that upon proof of these things the defendant was guilty of murder unless the defendant proved by a fair preponderance of the evidence that he acted in heat of passion on sudden provocation where the issue of heat of passion was raised. Thus Maine's law under these circumstances relieved the State of the burden of proving both malice and the absence of heat of passion. In this the Supreme Court found that due process was wanting. It said:

"Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter. In re Winship, 397 U.S., at 372, 90 S.Ct. [1068], at 1076 (concurring opinion). We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." Id. at 703-704, 95 S.Ct. at 1892.

In North Carolina, our law of homicide pertinent to the questions here raised has not been substantially changed since it was enunciated in 1864 in State v. Ellick, 60 N.C. 450. This Court there said:

"When it is proved that one has killed intentionally, with a deadly weapon, the burthen of showing justification, excuse or mitigation, is upon him. Id. at 459.

* * * * * *

". . . the fact of the homicide must be proved by the State; but if found or admitted, the onus of showing justification, excuse or mitigation, is upon the prisoner." Id. at 462.

The Court in Ellick concluded its opinion by saying that any fact which the State is required to establish must be proved beyond a reasonable doubt; but as to facts which the prisoner is required to establish, the jury must be satisfied by the testimony that they are true. Ellick has been cited as authoritative in State v. Phillips, 264 N.C. 508, 515, 142 S.E.2d 337, 341 (1965) and State v. Creech, 229 N.C. 662, 673, 51 S.E.2d 348, 357 (1949).

Another of our early cases on the subject was State v. Willis, 63 N.C. 26 (1868), which while holding that the defendant need not prove mitigation or justification by a preponderance of the evidence, nevertheless approved the following instruction given by the trial judge:

"[W]hen it is proved or admitted that one killed another intentionally, with a deadly weapon, the burden of showing justification, excuse or mitigation is on him, and all the circumstances of such justification, excuse or mitigation are to be satisfactorily proved by him, unless they appear in the evidence against him; that the fact of killing being proved or admitted, nothing more appearing, the law presumes such killing to have been done in malice, and so to be murder; that the circumstances of justification, excuse or mitigation, are to be satisfactorily proved, not proved as the State is required to prove an essential fact, that is beyond a reasonable doubt, for the doctrine of reasonable doubt is never applied to the condemnation of a prisoner, but to his acquittal; and that the jury must be satisfied by the testimony offered in the case on either side that the matter in justification, excuse or mitigation is true." Id. at 26-67. (Emphasis supplied.)

The Court said further:

"We prefer to stand super antiquas vias, and to adhere to the rules laid down in the State v. Ellick, above referred to. In that case the erroneous statement which we had inadvertently made in the State v. Peter Johnson, [48 N.C. 266 (1855)] that it was incumbent on the prisoner to establish the matters of excuse or extenuation beyond a reasonable doubt, is corrected. In it is also corrected what we consider as erroneous in the decision of the Court in Commonwealth v. York [9 Met. (50 Mass.) 93 (1845)], that the matters of excuse or extenuation which the prisoner is to prove, must be decided according to the preponderance of evidence. It is more correct to say, as we think, that they must be proved to the satisfaction of the jury." Id. at 29.

In State v. Vann, 82 N.C. 631, 635 (1880), Justice Dillard, elucidating the law laid down in Ellick and Willis, wrote:

"In an indictment for murder, the two constituents of the crime, to-wit, a voluntary killing and malice aforethought, must be proved by the state, as it makes the charge; and as the accused is presumed to be innocent until the contrary is shown, both of these elements must be proved. The killing being shown, then the other ingredient, malice prepense, is also proved as a fact in the eyes of the law, not by evidence adduced, but by a presumption that the law makes from the fact of the killing. And these two essential facts being thus established, the legal conclusion thereon is, that the offense charged is murder. (Citations omitted.)

"But the implication of malice, made by the law and taken as a fact, is not conclusive on the party accused, but may be rebutted. He may show, if he can, by his proofs that there was no malice prepense and thereby extenuate to manslaughter, or make a case of justifiable or excusable homicide, or a case of no criminality at all by proof of insanity at the time of the act committed, disabling him to know right from wrong. (Citations omitted.) The burden lies on the accused to make these proofs, if he can; otherwise, the conclusion of murder, on a malice implied, will continue against him and will call for, and in law, obliged a conviction by the jury." (Emphasis supplied.)

In State v. Miller, 112 N.C. 878, 885, 17 S.E. 167, 169 (1893), the Court pointed out "that when the killing with a deadly weapon is proved and admitted the burden is shifted upon the prisoner, and he must satisfy the jury, if he can do so, from the whole of the testimony, as well that offered for the state as for the defense, that matter relied on to show mitigation or excuse is true."

These early cases were decided before the enactment of N.C.Pub.Laws 1893, ch. 85 (now N.C.Gen.Stat. 14-17), which divided murder into two degrees. This act made certain specified kinds of murder, including a deliberate and premeditated killing, murder in the first degree. All other kinds of murder were made by the statute murder in the second degree. State v. Benton, 276 N.C. 641, 657, 174 S.E.2d 793 (1970). Homicide cases decided subsequent to this statute continued to sanction the presumptions of unlawfulness and malice but refused to recognize any presumption of premeditation or deliberation. State v. Brown, 249 N.C. 271, 106 S.E.2d 232 (1958); State v. Absher, 226 N.C. 656, 40 S.E.2d 26 (1946); State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899); State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894). Modern, accurate and sufficient statements of the rules regarding these presumptions may be found in State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971).

The foregoing authorities establish that from 1864 to 1975, 111 years, the law of this State has been this: when it is established by a defendant's judicial admission, or the State proves beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately caused death, the law raises two presumptions against the defendant: (1) the killing was unlawful, and (2) it was done with malice. Nothing else appearing in the case the defendant would be guilty of murder in the second degree. When these presumptions arise the burden devolves upon the defendant to prove to the satisfaction of the jury the legal provocation which will rob the crime of malice and reduce it to manslaughter or which will excuse the killing altogether on the ground of self-defense. If defendant rebuts the presumption of malice only, the presumption that the killing was unlawful remains, making the crime manslaughter. The jury instructions complained of here were in accordance with these long established rules.

This Court has never defined precisely what is meant by "satisfying" the jury. It has been clear, however, from the earliest cases that satisfying the jury meant something other than persuading beyond a reasonable doubt and persuading by a preponderance of the evidence. State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969); State v. Barrett, 132 N.C. 1005, 43 S.E. 832 (1903). This Court said in Barrett:

"[T]he prisoner must satisfy the jury neither beyond a reasonable doubt, nor yet by a preponderance of testimony, but simply satisfy them, of the existence of facts and circumstances which mitigate the offense, or which make good a plea of self-defense."

Satisfying the jury, the standard long adopted by this Court and utilized in the instructions now under consideration means, we believe, a standard no greater and at the same time one not significantly less than persuasion by a preponderance of the evidence. Satisfying the jury means that there must be some evidence offered of all elements of heat of passion on sudden provocation or of self-defense, as the case may be, and that this evidence must satisfy or persuade the jury of the truth of the existence of these provocations—one which robs the crime of malice and the other which excuses it altogether.

Under the Maine rules considered in Mullaney when the State proved beyond a reasonable doubt that the killing was (1) intentional, and (2) unlawful, the jury was told that the defendant would be guilty of murder unless he proved by a preponderance of the evidence that he killed in the heat of passion in which case he could be convicted only of manslaughter. Under North Carolina rules when the State proved beyond a reasonable doubt a killing proximately resulting from the intentional use of a deadly weapon the jury here was told, in effect, that defendant would be guilty of murder in the second degree unless he "satisfies" the jury that he killed in the heat of sudden passion or in self-defense. The instructions here under consideration, therefore, like those in Maine, unconstitutionally relieved the prosecution of the burden of proving beyond a reasonable doubt malice and unlawfulness when the issues of their existence were properly raised.

We note that there is no evidence in this case of a killing in the heat of passion on sudden provocation. Therefore this issue is not "properly presented" as it was in Mullaney. There could not, consequently, be any Mullaney error prejudicial to defendant on this aspect of the case.

As a matter of state law, however, and as the jury was instructed here, our rules allocating burden of proof on self-defense and heat of passion are the same. As early as 1868 this Court in State v. Willis, supra 63 N.C. at 29-30 said, "In the proof of such matters we do not recognize any distinction between the case where the question is whether the homicide is murder or manslaughter, and that where it is whether the killing is murder or excusable or justifiable homicide." There is in this case evidence of self-defense. The issue regarding its existence is properly presented. For the guidance of our trial judges, consequently, and inasmuch as there are jury instructions given here as if there were evidence of a heat of passion killing, we have discussed the matter as if such evidence were indeed present.

It is also true that the trial judge did near the beginning and at the end of his instructions tell the jury that the State had the burden to prove beyond a reasonable doubt both malice and unlawfulness. We are cognizant of the federal rule that jury instructions must be considered contextually in determining whether there is error of federal constitutional dimension. Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973). Considering the entire instruction contextually we believe it must have meant this to the jury in this case: the state as a matter of abstract principle was required to prove each element of the offense charged, including malice and unlawfulness, beyond a reasonable doubt. If, however, an intentional killing with a deadly weapon was so proved (defendant here admitted this much) a presumption arises which even in the presence of evidence of a justifiable, and hence lawful, homicide nevertheless relieves the state of proving unlawfulness and requires the jury to find the defendant guilty unless this evidence satisfies it of the truth of defendant's contention that he did kill in self-defense.

The Mullaney ruling does not, however, preclude all use of our traditional presumptions of malice and unlawfulness. It precludes only utilizing them in such a way as to relieve the state of the burden of proof on these elements when the issue of their existence is raised by the evidence. The presumptions themselves, standing alone, are valid and, we believe, constitutional. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974), pet. for cert. filed, 43 U.S.L.W. 3392 (U.S. Nov. 29, 1974) (No. 669). Neither, by reason of Mullaney, is it unconstitutional to make the presumptions mandatory in the absence of contrary evidence nor to permit the logical inferences arising from facts proved (killing by intentional use of deadly weapon), State v. Williams, supra, to remain and be weighed against contrary evidence if it is produced. The effect of making the presumptions mandatory in the absence of any contrary evidence is simply to impose upon the defendant a burden to go forward with or produce some evidence of all elements of self-defense or heat of passion on sudden provocation, or rely on such evidence as may be present in the State's case. The mandatory presumption is simply a way of stating our legal rule that in the absence of evidence of mitigating or justifying factors all killings accomplished through the intentional use of a deadly weapon are deemed to be malicious and unlawful. The prosecution need not prove malice and unlawfulness unless there is evidence in the case of their nonexistence. Cf. McCormick, Evidence (2d Ed.1972) § 346, n. 91. We find this perceptive language in G. Fletcher, "Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion-Practices in Criminal Cases", 77 Yale L.J. 905 (1968) (cited in Mullaney v. Wilbur, supra, n. 16):

"The critical step in the conceptual evolution of malice is MacKally's Case. [9 Co.Rep. 65b, 77 Eng.Rep. 828 (1611)]. That early 17th century decision, as reported and interpreted by Coke, stands for the principle that the prosecution need not prove the element of malice to convict of murder. The judges realized that malice does not lend itself to affirmative proof; by and large, the malicious killing is defined by reference to what it is not, not by what it is. As agreed by all, one type that was not malicious was a killing provoked by a sudden quarrel. Thus, to have a triable issue of malice, one had to have a triable claim that the defendant killed in the course of a sudden quarrel."

The same, we believe, may be said of the element of unlawfulness. There is no suggestion in Mullaney that placing such a burden of producing evidence upon a defendant violates Fourteenth Amendment Due Process. "Many States do require the defendant to show that there is `some evidence' indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt. (Citations omitted.) Nothing in this opinion is intended to affect that requirement." Mullaney v. Wilbur, supra, n. 28.

If there is evidence tending to show all elements of heat of passion on sudden provocation or self-defense the mandatory presumptions of malice and unlawfulness, respectively, disappear but the logical inferences remaining from the facts proved may be weighed against this evidence. In Barnes v. United States, 412 U.S. 837, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973), the Supreme Court said:

"Of course, the mere fact that there is some evidence tending to explain a defendant's possession consistent with innocence does not bar instructing the jury on the inference. The jury must weigh the explanation to determine whether it is `satisfactory.' . . . The jury is not bound to accept or believe any particular explanation any more than it is bound to accept the correctness of the inference. But the burden of proving beyond a reasonable doubt that the defendant did have knowledge that the property was stolen, an essential element of the crime, remains on the government."

See United States v. Dube, 520 F.2d 250 (1st Cir. 1975) (Judge Campbell concurring.)

Mullaney, then, as we have interpreted it, requires our trial judges in homicide cases to follow these principles in their jury instructions: the State must bear the burden throughout the trial of proving each element of the crime charged including, where applicable, malice and unlawfulness beyond a reasonable doubt. The decision permits the state to reply on mandatory presumptions of malice and unlawfulness upon proof beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately resulted in death. If, after the mandatory presumptions are raised, there is no evidence of a heat of passion killing on sudden provocation and no evidence that the killing was in self-defense, Mullaney permits and our law requires the jury to be instructed that defendant must be convicted of murder in the second degree. If, on the other hand, there is evidence in the case of all the elements of heat of passion on sudden provocation the mandatory presumption of malice disappears but the logical inferences from the facts proved remain in the case to be weighed against this evidence. If upon considering all the evidence, including the inferences and the evidence of heat of passion, the jury is left with a reasonable doubt as to the existence of malice it must find the defendant not guilty of murder in the second degree and should then consider whether he is guilty of manslaughter. If there is evidence in the case of all the elements of self-defense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. If upon considering all the evidence, including the inferences and evidence of self-defense, the jury is left with a reasonable doubt as to the existence of unlawfulness it must find the defendant not guilty.

V

This case was tried November 21, 1974; Mullaney was decided June 9, 1975. We decline, without further guidance from the Supreme Court, to give the decision retroactive effect. We believe and hope that the Supreme Court will eventually determine that the decision applies prospectively only. If such a determination is eventually made by the Supreme Court not only would we not be required to apply its principles to the case now before us, Kaiser v. New York, 394 U.S. 280, 89 S. Ct. 1044, 22 L. Ed. 2d 274 (1969); Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969), it seems that it would be considered error by the Supreme Court for us to do so. In Michigan v. Payne, 412 U.S. 47, 93 S. Ct. 1966, 36 L. Ed. 2d 736 (1973), the Michigan Supreme Court had rejected a higher sentence imposed upon a defendant convicted after a retrial than was imposed upon his first conviction as being violative of certain due process requirements established in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 33 L. Ed. 2d 656 (1969). The second sentence was imposed before the Pearce decision. In Payne the United States Supreme Court held that Pearce would not apply retroactively and it was, consequently, error for the Michigan Supreme Court to apply it to a sentencing proceeding which predated the decision although the question of the constitutionality of the higher sentence was pending before the Michigan Supreme Court when Pearce was decided. The judgment of the Michigan Supreme Court was reversed and the case remanded for further proceedings. See also State v. Bullock, 268 N.C. 560, 151 S.E.2d 9 (1966) and State v. Mills, 268 N.C. 142, 150 S.E.2d 13 (1966) where we declined to apply Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) to cases in which the trials were conducted before the decision but which were pending on appeal at the time the decision came down, on the authority of Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966).

While Mullaney relied heavily on Winship and Winship was held to be retroactive in Ivan V. v. City of New York, 407 U.S. 203, 92 S. Ct. 1951, 32 L. Ed. 2d 659 (1972), it does not necessarily follow that Mullaney will be given retroactive effect.

In determining whether a new rule of constitutional proportions is given retroactive effect the Supreme Court seems to have considered three factors. The most important factor seems to have been the purpose to be served by the new rule. If the rule is designed to protect the reliability of the fact finding process and "the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined" then it has been said that the decision will on this basis alone be given full retroactive effect. Ivan V. v. City of New York, supra (holding In re Winship, supra, retroactive); Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968) (holding Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) retroactive).

If the first factor is not determinative then the Supreme Court has considered two other factors: the extent of reliance on previous decisions, Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966), even though the new rule may have been "foreshadowed" by intervening cases, Desist v. United States, supra, 394 U.S. at 248, 89 S. Ct. 1030, and the effect on the administration of justice of retroactive application, Id. at 251, 89 S. Ct. 1030, not only in the nation as a whole but within the particular jurisdictions affected. Tehan v. United States ex rel. Shott, supra, 382 U.S. at 418-419, 86 S. Ct. 459.

Although the first factor listed is clearly the most important, how that factor is approached by the Supreme Court seems sometimes to depend on analysis of the other two factors. Compare Tehan v. United States ex rel. Shott, supra (holding Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) not retroactive), with Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) (holding United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) not retroactive). In holding Griffin, which declared unconstitutional the California practice of commenting on a defendant's failure to take the stand, not to be retroactive the Supreme Court in Tehan recognized that, although only six states would be affected by Griffin, almost every trial in those six states going back many years might have to be upset if Griffin were made retroactive. Noting such a devastating impact on the administration of justice, the Supreme Court said:

"Those reaping the greatest benefit from a rule compelling retroactive application of Griffin would be [those] under lengthy sentences imposed many years before Griffin. Their cases would offer the least likelihood of a successful retrial since in many, if not most, instances, witnesses and evidence are no longer available." Tehan v. United Statee ex rel. Shott, supra 382 U.S. at 418-419, 86 S.Ct. at 466.

Mullaney and Winship are poles apart in terms of extent of reliance on previous rules and the effect on the administration of justice of retroactive application. It seems clear that the Supreme Court saw no reliance by New York on previous rules in Winship. It traced almost 100 years of cases in which it had "assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required." In re Winship, supra 397 U.S. at 362, 90 S.Ct. at 1071. It considered In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) as an express rejection of the notion that the Due Process Clause was inapplicable to juvenile proceedings. In re Winship, supra 397 U.S. at 365, 90 S. Ct. 1068. Winship, furthermore, involved a juvenile proceeding. Its impact, consequently, on the administration of justice in New York would obviously be less than a rule which applies to all homicide cases.

The jury instructions here under attack are based upon rules which have been firmly with us for over one hundred years. Retroactive application of Mullaney in this State would, furthermore, have the same sort of effect, recognized in Tehan, as Griffin retroactivity would have had in California and other jurisdictions. As of June 30, 1975, there were 269 inmates in prison in this State who had been convicted of first degree murder serving sentences of life imprisonment or awaiting execution, and 728 inmates in prison having been convicted of second degree murder serving sentences ranging from two years to life. State Correctional Statistical Abstract for the Second Quarter, 1975. If Mullaney is to be applied retroactively new trials might have to be awarded in many cases decades old.

A number of other jurisdictions would, we believe, be similarly affected. In the following seven jurisdictions the defendant has (or had) the burden to prove by a preponderance of the evidence heat of passion on sudden provocation (or "extreme emotional distress") to reduce murder to manslaughter: Delaware, Fuentes v. State, 349 A.2d 1 (Del. Oct. 14, 1975); Hawaii, (Mullaney would probably affect cases in which the appeal was finally determined prior to August 27, 1971. Compare State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) with State v. Cuevas, 53 Haw. 110, 488 P.2d 322 (1971)); Main, Mullaney v. Wilbur, supra; Maryland, Wilson v. State, 261 Md. 551, 276 A.2d 214 (1971); Wilson v. State, 28 Md. App. 168, 343 A.2d 537 (1975); Burko v. State, 19 Md.App. 645, 313 A.2d 864 (1974) vacated 422 U.S. 1003, 95 S. Ct. 2624, 45 L. Ed. 2d 667 (1975); Massachusetts, Comm. v. Johnson, Mass.App., 326 N.E.2d 355 (1975) restating the rule of Comm. v. York, 50 Mass. (9 Met.) 93 (1845); Cf. Comm. v. Gagne, Mass., 326 N.E.2d 907, 910 (1975); New York, People v. Balogun, 372 N.Y.S.2d 384 (N.Y. Supreme Ct. Kings County 1975); Tennessee, Hawkins v. State, 527 S.W.2d 157 (Tenn.App.1975). If, as we believe, Mullaney prohibits requiring the defendant to prove that he acted in self-defense by a preponderance of the evidence when that issue is properly presented the following seven jurisdictions would be adversely affected: Georgia, Chandle v. State, 230 Ga. 574, 198 S.E.2d 289 (1973); See also Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975) (citing Mullaney); Ohio, State v. Poole, 33 Ohio St. 2d 18, 294 N.E.2d 888 (1973) (for cases prior to January 1, 1974, the effective date of Ohio Rev.Code Ann. § 2901.05 (Page 1975) which probably corrects Ohio law); Pennsylvania Comm. v. Cropper, Pa., 345 A.2d 645 (1975) (intimating that Mullaney may affect Pennsylvania); Comm. v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Comm. v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970); Rhode Island, State v. Mellow, R.I., 107 A. 871 (1919); South Carolina, State v. Judge, 208 S.C. 497, 38 S.E.2d 715 (1946); Texas, Parkman v. State, 149 Tex. Crim. 101, 191 S.W.2d 743 (1945) (at least in cases tried before January 1, 1974, the effective date of the New Texas Penal Code §§ 2.03, 9.02, 9.31 (Vernon 1974), which probably corrects Texas law in this respect); West Virginia, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).

Retroactive application of Mullaney requiring retrials in homicide cases years old in at least fifteen jurisdictions would, we believe, have on the administration of justice in this country a devastating impact.

We concede that the purpose of the Mullaney rule, to insure a reliable determination of the question of guilt, or the degree of guilt, weighs in favor of retroactivity. Yet the Supreme Court has recognized that "[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a `question of probabilities.'" Williams v. United States, 401 U.S. 646, n. 7, 91 S. Ct. 1148, 1153, 28 L. Ed. 2d 388 (1971); Stovall v. Denno, supra. While in Winship there could be no question that the standard of proof employed was determinative on the issue of guilt, In re Winship, supra, n. 2, whether the jury instructions condemned in Mullaney and even more clearly those under attack here would in the final analysis be so determinative to a jury so instructed is a matter of pure speculation.

We note that both cases from other jurisdictions which have so far considered the question, have determined that Mullaney should not be given retroactive effect. Fuentes v. State, supra (Delaware); People v. Balogun, supra (New York).

For the reasons given, in the trial we find

No error.

LAKE, Justice (concurring in result).

It is elementary that a decision of the Supreme Court of the United States interpreting the Constitution of the United States is binding upon this Court and, although we may believe it to be erroneous, we must give it full effect in cases coming before us. It is equally elementary that a decision of a court of last resort, declaring or interpreting a rule of law, is retroactive and applies to all cases thereafter to be decided, irrespective of when they arose, unless the court which rendered that decision declares otherwise. This is more clearly true when there has been no prior conflicting decision by that court. This Court does not have authority to declare a decision of the Supreme Court of the United States non-retroactive. In the silence of that Court on that question a decision by it, interpreting the Due Process Clause of the Fourteenth Amendment, gives to that clause the meaning so declared just as if the interpretation had been expressly written into it at the time the Amendment was ratified.

To hold, as the majority opinion does, that Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508, declares that the instruction given the jury in the case now before us, violates the Due Process Clause of the Fourteenth Amendment, but that we will, nevertheless, refuse to order a new trial is for this Court to deny to this defendant his right under the United States Constitution. I agree that to give Mullaney v. Wilbur, supra, retroactive effect and to hold that it declares the instruction in question is contrary to the Due Process Clause of the Fourteenth Amendment would be disastrous, for such ruling would require a new trial, not only for this defendant, but for an unknown number, perhaps hundreds, of prisoners now serving sentences for murders of which this Court has held they were lawfully convicted. The practical effect would be to release most of these convicted murderers upon society, since loss of witnesses, due to the passage of time, would, in most instances, prevent conviction upon a retrial. This disaster can be averted if the Supreme Court of the United States declares Mullaney v. Wilbur, supra, to be non-retroactive, a consummation devoutly to be desired, but this Court has no authority so to declare and, as of this date, the Supreme Court of the United States has not done so.

There is a way, however, whereby this Court can avoid this disastrous result and, in my opinion, should do so. That is to hold, as I believe is correct, that Mullaney v. Wilbur, supra, does not declare the instruction given to the jury by the Superior Court in Hankerson's case a violation of the Due Process Clause. If that be true, Hankerson is not entitled to a new trial and the majority opinion has reached the correct result for the wrong reason.

This is the instruction in question:

"Under our system, when a person is charged with a crime and he pleads not guilty he does not have to prove that he is innocent, he is presumed innocent, and the burden of proof is on the State to prove beyond a reasonable doubt that he is guilty before you can find him guilty.

* * * * * *

"I charge that for you to find the defendant guilty of second degree murder [the crime with which Hankerson was charged and of which he stands convicted], the State must prove two things beyond a reasonable doubt * * * that the defendant intentionally and without justification or excuse and with malice shot Gregory Ashe with a deadly weapon. Malice * * * means that condition of mind which prompts a person to take the life of another intentionally, or to intentionally inflict a wound with a deadly weapon upon another which proximately results in his death without just cause, excuse or justification.

* * * * * *

"In order to reduce the crime from second degree murder to manslaughter, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that there was no malice on his part. And in order to excuse his act altogether on the grounds of self defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self defense.

* * * * * *

"So I charge you, Ladies and Gentlemen, if you find from the evidence and beyond a reasonable doubt that on or about September 29, 1974, the defendant, Johnnie B. Hankerson, intentionally and with malice and without justification or excuse [i. e., not in self defense] shot Gregory Ashe with a deadly weapon, thereby proximately causing Gregory Ashe's death, nothing else appearing, it would be your duty to return a verdict of guilty of second degree murder. However, if you do not so find, or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of second degree murder." (Emphasis added.)

By this instruction the trial judge put squarely upon the State the burden to prove beyond a reasonable doubt every element of second degree murder, namely: (1) The defendant shot Ashe; (2) he thereby proximately caused Ashe's death; (3) he shot Ashe with malice (i. e., intentionally and with a deadly weapon); (4) he shot Ashe without justification or excuse (i. e., not in self defense).

Clearly, if this were all that the jury was told, the rule of Mullaney v. Wilbur, supra, would be fully satisfied. But, says the majority, this is not all they were told. They were also told that to reduce the offense to manslaughter the defendant must prove to the jury's satisfaction he did not shoot Ashe with malice, and to excuse the killing entirely on the ground of self defense, the defendant must prove to the jury's satisfaction that he killed Ashe in self defense, the elements of which were correctly defined.

At first glance it seems inconsistent and contradictory to instruct the jury that the State has the burden to prove beyond a reasonable doubt the presence of malice and absence of the justification of self defense and the defendant has the burden of proving to the satisfaction of the jury the absence of malice or the presence of the justification of self defense. This Court has, however, held to the contrary many times, the harmonizing factor lying in the meaning of the term "to the satisfaction of the jury."

In State v. Freeman, 275 N.C. 662, 666, 170 S.E.2d 461, 464, Justice Sharp, now Chief Justice, speaking for a unanimous Court, said:

"These cases [citations omitted] enunciate and reiterate the rule—established in our law for over one hundred years, State v. Willis, 63 N.C. 26 (1868)—that when the burden rests upon an accused to establish an affirmative defense or to rebut the presumption of malice which the evidence has raised against him, the quantum of proof is to the satisfaction of the jury—not by the greater weight of the evidence nor beyond a reasonable doubt — but simply to the satisfaction of the jury."

In Stansbury, North Carolina Evidence (Brandis Revision), § 214, it is said that proving the presence of self defense or the absence of malice "to the satisfaction of the jury" does not require a showing "by the greater weight of the evidence."

If the defendant can satisfy this requirement by less than the "greater weight" of the evidence; that is by less persuasive, less convincing evidence than would be sufficient to tip the scales ever so slightly in his favor, how can it be said that the burden of proof "has been put upon him?" The burden of proof is the burden to persuade the mind, to convince. A burden less than this can only be a burden to establish a reasonable, rational doubt. Thus, there is no inconsistency in telling the jury that, to convict the defendant of second degree murder, the State must prove presence of malice and absence of justification (self defense) beyond a reasonable doubt and, although the State has proved, beyond a reasonable doubt, an intentional killing with a deadly weapon, the defendant must be acquitted of that charge if he has satisfied the jury of the absence of malice or the presence of justification (self defense).

Admittedly, the jury cannot be expected to know what this Court has said proof "to the satisfaction of the jury" does not mean. The question is whether the jury could have been misled by what the trial judge told them in his charge in this case. As above stated, he clearly and unequivocally told the jury they must find the defendant not guilty of second degree murder unless the State had proved beyond a reasonable doubt every element of that crime, including the presence of malice and the absence of justification (self defense). In my opinion, the jury which found this defendant guilty of second degree murder could not have been confused about this, and the charge of the court, which is a correct statement of the law of this State, did not in any way place upon the defendant a burden of proof forbidden by the Due Process Clause of the Fourteenth Amendment as now construed in Mullaney v. Wilbur, supra. I, therefore, concur in the majority's conclusion that this defendant is not entitled to a new trial.

Mullaney v. Wilbur, supra, held this and nothing more: The Due Process Clause of the Fourteenth Amendment forbids a state to require a defendant to prove (i. e., to persuade, to convince the jury by the greater weight of the evidence) that he acted in the heat of passion (i. e., without malice) in order to reduce a homicide from murder to manslaughter. As above noted, the charge to the jury in the present case does not do that. Mullaney v. Wilbur, supra, relied upon and is an application of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368, which held the Due Process Clause requires the state to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. That is exactly what the trial judge's instruction to the jury required in the present case.

Thus, in the present case, there has been no violation of the Due Process Clause as construed in Mullaney v. Wilbur, supra, and in In re Winship, supra. The majority opinion extends Mullaney v. Wilbur, supra, and In re Winship, supra, improperly and unnecessarily. It seeks to avoid a resulting mass exodus of justly convicted murderers from the State Prison by reliance upon the broken reed of this Court's power to declare Mullaney v. Wilbur, supra, non-retroactive, or upon what I fear is the slender reed of hope that, before such exodus occurs, the Supreme Court of the United States will so declare it. If Mullaney v. Wilbur, supra, is declared retroactive, the majority opinion leaves no alternative to the granting of new trials to all murderers now in prison upon convictions pursuant to a charge like the one in this case. However, if Mullaney v. Wilbur, supra, be retroactive, as in my opinion it now is, future proceedings on behalf of prisoners now serving sentences heretofore imposed should be carefully reviewed on a case by case basis to determine whether the charge given in such case actually did place on the defendant the burden of disproving some essential element of the crime.

Since the instruction that the defendant must prove absence of malice or presence of justification "to the satisfaction of the jury" does not place upon him the burden of persuading or convincing, but only the burden of creating a reasonable doubt, it serves no useful purpose and its use should be discontinued.