State v. Chavis

226 S.E.2d 389 (1976)

30 N.C. App. 75

STATE of North Carolina v. Joseph D. CHAVIS.

No. 7616SC174.

Court of Appeals of North Carolina.

July 7, 1976.

*391 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard F. Kane, Raleigh, for the State.

L. J. Britt & Son by Luther J. Britt, Jr., and Bruce W. Higgins, Lumberton, for defendant Chavis, appellant.

PARKER, Judge.

The attorneys for defendants Chavis and Pevia have caused two separate records on appeal to be filed in this Court. There should have been but one. Rule 11(d), North Carolina Rules of Appellate Procedure. Each counsel will be personally taxed with a portion of the costs of the unnecessary record. Rule 9(b)(5) of the Rules of Appellate Procedure; see opinion of Chief Judge Brock in State v. Patricia Ann McKenzie, Case No. 7620SC74, which is filed contemporaneously herewith.

On appeal of defendant Chavis, counsel first contends that the court erred in denying the defendant's motion to direct a verdict for defendant at the close of the State's evidence as to the charge of second degree murder. "In a criminal case the proper motion to test the sufficiency of the State's evidence to carry the case to the jury is a motion to dismiss the action or a motion for judgment as in the case of nonsuit, pursuant to G.S. 15-173." State v. Everette, 284 N.C. 81, 84, 199 S.E.2d 462, 465 (1973). We shall treat defendant's motion for a directed verdict as having been a motion for judgment as in case of nonsuit. In this case, defendant Chavis introduced evidence. By so doing he waived his right to except on appeal to the denial of his motion for nonsuit made at the close of the State's evidence. G.S. 15-173; State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Paschall, 14 N.C.App. 591, 188 S.E.2d 521 (1972). On this appeal, therefore, we consider only defendant Chavis's second motion, made at the close of all the evidence.

When all of the evidence is viewed in the light most favorable to the State and when all discrepancies and contradictions are resolved in favor of the State, we find the evidence was amply sufficient to support a jury finding that Chavis intentionally used a deadly weapon and thereby caused the death of Lowery. "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. Gordon, 241 N.C. 356, 358, 85 S.E.2d 322, 323 (1955). These traditional presumptions are still valid. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975). There was no error in submitting the charge of second degree murder to the jury.

While we hold that the evidence was amply sufficient to justify submitting second-degree murder as a possible verdict, we point out that defendant's conviction of voluntary manslaughter would render harmless an error, had any error been committed, *392 in submitting to the jury the question of defendant's guilt of the more serious offense, at least absent any showing that the verdict of guilty of the lesser offense was affected thereby. "It has long been recognized in this State that submission of a question regarding the guilt of a defendant of murder in the second degree became harmless when the jury returned a verdict of manslaughter." State v. Bryant, 282 N.C. 92, 101, 191 S.E.2d 745, 751 (1972).

Defendant's second argument, that the court erred in denying his motions made at the close of all of the evidence for a directed verdict as to manslaughter and to dismiss all charges against him, is without merit. The evidence for the defense tending to show that defendant Chavis did not shoot Lowery and that in resisting Lowery's attack he acted in self-defense was for the jury to evaluate. Viewed in the light most favorable to the State, the evidence was amply sufficient to warrant submitting the case to the jury and to support the verdict rendered.

Finally, defendant Chavis contends that the court erred in denying his motion to set aside the verdict as being against the greater weight of the evidence. "A motion to set aside the verdict as being against the greater weight of the evidence is addressed to the discretion of the trial court, and the court's refusal to grant the motion is not reviewable on appeal." State v. Dull, 289 N.C. 55, 62, 220 S.E.2d 344, 348 (1975).

On the appeal of defendant Chavis we find

No error.

HEDRICK and ARNOLD, JJ., concur.