STATE of North Carolina
v.
Otto WITHERS, Jr.
No. 249.
Supreme Court of North Carolina.
September 20, 1967.*735 W. B. Nivens, Charlotte, Attorney for defendant appellant.
T. W. Bruton, Atty. Gen., and James F. Bullock, Deputy Atty. Gen., for the State.
*736 PLESS, Justice.
The defendant complains that the judge did not inform the jury "who, what jury, and under what circumstances these charges were made." The judge began his charge with the statement, "(T)he State of North Carolina charges in this bill of indictment," etc. The defendant contends that the jury was left in a state of doubt as to who made or brought these charges against this defendant. Having been indicted by a grand jury, this was irrelevant, and the contention is without merit.
The defendant further claims that the court committed prejudicial error in the following statements:
"Now, a reasonable doubt is not an imaginary or fanciful doubt, members of the jury, but a sane, rational doubt that arises out of the evidence or lack of evidence, or some deficiency in it." DEFENDANT'S EXCEPTION NO. 7 (R. p. 78) (Addendum, p. 4)
"A reasonable doubt is a termas that term is employed in the administration of the criminal law is an honest substantial misgiving generated by some insufficiency of the proof, an insufficiency which fails to convince your mind and judgment, and satisfy your reasoning of the defendant's guilt." DEFENDANT'S EXCEPTION NO. 8 (R. p. 78) (Addendum, p. 5)
These statements are in substantial accord with the definitions approved by the court. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133; State v. Steele, 190 N.C. 506, 130 S.E. 308. In Hammonds, supra, the court said, "The law does not require any set formula in defining reasonable doubt"; and we can see no prejudice to the defendant in the above definitions.
Another exception is to the following excerpts from the charge:
"It will be obvious to you that the distinction between murder in the first degree and murder in the second degree is the presence of premeditation and deliberation in murder in the first degree and the absence of premeditation and deliberation in murder in the second degree * * * in the second degree, members of the jury. In other words, to convict of murder in the first degree, it will be essential that the State should satisfy you beyond a reasonable doubt that the defendant killed the deceased with malice, and with premeditation and deliberation." DEFENDANT'S EXCEPTION NO. 14 (R. p. 81) (Addendum, p. 7)
"So you will observe that the distinction between murder in the second degree and manslaughter is the presence of malice in murder in the second degree, and its absence in manslaughter." DEFENDANT'S EXCEPTION NO. 15 (R. p. 81) (Addendum, p. 7)
There the court was explaining the differences between murder in the first degree and murder in the second degree, and manslaughter and murder in the second degree. The instructions are entirely correct as supported by our decisions in many cases. In State v. Downey, 253 N.C. 348, 117 S.E.2d 39, Winborne, C. J., succinctly summarized the degrees of murder:
"(1) Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. (2) Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. And (3) manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation."
The given instructions are in accord.
The final group of exceptions relate to the part of the charge in which the judge was defining a misadventure. He said:
"It is an intentionaluhit is an unintentional killing in which the perpetrator *737 had no wrong purpose in doing the act which caused the death; done accidentally and not negligently; while he was engaged in no unlawful act. In other words, misadventure, when applied to homicide, is the act of a man who, in the performance of a lawful act without any intention to do harm, and using proper precaution to avoid danger unfortunately kills another." DEFENDANT'S EXCEPTION NO. 17 (R. p. 85) (Addendum, p. 10)
While it appears that the judge used the word "intentional" at the beginning of the statement, it is quite clear that he immediately corrected himself by saying "it is an unintentional killing."
The above quotation is a correct statement of the law of killing by misadventure. In 26 Am.Jur., Homicide, § 220, p. 305, it is said: "Where it appears that a killing was unintentional, that the perpetrator acted with no wrongful purpose in doing the homicidal act, that it was done while he was engaged in a lawful enterprise, and that it was not the result of negligence, the homicide will be excused on the score of the accident." This is quoted by Sharp, J., speaking for the Court in State v. Phillips, 264 N.C. 508, 142 S.E.2d 337. See also 40 C.J.S. Homicide § 112b, p. 980.
The instruction given was more than the defendant was entitled to receive. It could not be seriously contended that the defendant was "in the performance of a lawful act without any intention to do harm." Four witnesses testified that he had gone to his mother-in-law's home with his pistol and that he had threatened to kill everybody in the house. And while he denied the threats, he did admit that he had gone there with a pistol, with bullets for it, and had remained there awaiting the return of his wife for at least six or seven hours.
The defendant had other exceptions, but they were not brought forward in the brief, and no reason or argument is stated and no authority cited in support of them. They are thus deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 810, and 1 Strong, N.C. Index, Appeal and Error § 38.
It appears that the defendant has had a fair trial.
No error.