State v. Hankerson

217 S.E.2d 9 (1975)

26 N.C. App. 575

STATE of North Carolina v. Johnnie B. HANKERSON.

No. 757SC268.

Court of Appeals of North Carolina.

July 16, 1975.

*11 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Claud W. Harris and Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

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

MARTIN, Judge.

Defendant assigns as error the denial of his motions for judgment as of nonsuit. He earnestly argues that the State introduced in evidence exculpatory statements of defendant which were not contradicted or shown to be false by other facts or circumstances in evidence; that these exculpatory statements establish a complete defensei. e. self-defense; that the State was bound by these statements; and that, consequently, defendant was entitled to judgment as of nonsuit.

There was plenary evidence that deceased died from a wound intentionally inflicted by defendant with a pistol, thus creating the presumption that the killing was unlawful and that it was done with malice. Upon the jury finding that deceased died from a wound intentionally inflicted by defendant with a pistol, it became incumbent upon defendant to satisfy the jury that the killing was committed without malice so as to mitigate it to manslaughter or that it was justified on the ground of self-defense. State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970).

While the exculpatory statement of defendant introduced in State's evidence was competent to be considered on the motion to nonsuit, "it may not be regarded as conclusive if there be other evidence tending to throw a different light on the circumstances of the homicide." State v. Bright, 237 N.C. 475, 75 S.E.2d 407 (1953). The State was not bound by the statement if other evidence offered pointed to a different conclusion and raised the reasonable inference from all the testimony that the shooting was intentional and unlawful. State v. Bright, supra.

Brief consideration of the evidence shows that the State's evidence did not make out a defense for defendant, and that there was sufficient evidence to carry the case to the jury.

Defendant admitted that he was at the scene of the crime and that he shot at someone. When Officer Reams went to the home of defendant to investigate, defendant stated that he was in the process of buying the gun which was used in the shooting and that he had returned the gun to its owner. In his testimony at trial, defendant admitted that he had not returned the gun and that it was in fact in the house at that time. Annie Hankerson, defendant's mother, testified that police officers asked her about the gun and that she got it from a drawer where defendant kept his personal things and gave it to them. Pursuant to defendant's statement that grease marks had been left on his shirt when the man had grabbed him, Officer Reams examined the hands of the deceased *12 but found no grease. In addition, Officer Reams testified that the knife, which was found on the front seat of defendant's car, had some bark on it and looked like it had been cutting wood. According to Officer Reams, defendant worked at a lumber yard. Several witnesses testified that they had never seen the deceased with the knife. Furthermore, defendant left the scene, went home, and did not report to the police that he had been assaulted by someone with a knife. The motions for judgment as of nonsuit were properly denied.

In assignment of error number six, defendant concedes that the trial court properly instructed the jury regarding the law of self-defense, but he contends that error was committed because of the court's failure to include not guilty by reason of self-defense as a possible verdict in its final mandate to the jury. Under the authority of State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974), we would be required to sustain this assignment of error except that in the present case the trial court cured its error by giving additional instructions. After the jury had deliberated for some time, they returned for additional instructions, and the court specifically charged them 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."

Defendant's other assignments of error are without merit.

In the trial we find no prejudicial error.

No error.

CLARK, J., concurs.

ARNOLD, J., dissents.

ARNOLD, Judge (dissenting).

Defendant's motion for nonsuit should have been granted. The exculpatory statements introduced into evidence by the State were not contradicted. All the evidence and reasonable inferences are consistent with defendant's innocence by reason of self-defense as established by the exculpatory statements.

I respectfully dissent from the majority and vote for reversal.