State v. Hovis

64 S.E.2d 564 (1951)

233 N.C. 359

STATE v. HOVIS.

No. 291.

Supreme Court of North Carolina.

March 28, 1951.

*566 Harry McMullan, Atty. Gen. and T. W. Bruton, Asst. Atty. Gen., for the State.

Childs & Childs and Jonas & Jonas, all of Lincolnton, for defendant.

STACY, Chief Justice.

The single question presented for decision is the sufficiency of the evidence to overcome the demurrer and to withstand the motion for a directed verdict. The rulings of the trial court were favorable to the State, and we are disposed to approve.

It is true the evidence is not all one way and it was offered by the prosecutionthe defendant electing not to go upon the witness stand or to offer any evidencenevertheless it is the rule with us that on demurrer to the evidence or motion for directed verdict the State is entitled to have the evidence considered in its most favorable light, eliminating for the purpose any discrepancies or contradictions which the jury alone may reconcile or consider. State v. Rountree, 181 N.C. 535, 106 S.E. 669. The court's inquiry on demurrer or such motion is directed to the sufficiency of the evidence to warrant its submission to the jury and to support a verdict for the prosecution. State v. Hart, 116 N.C. 976, 20 S.E. 1014. Neither the weight nor the reconciliation of the evidence nor the credibility of the witnesses is for the court. State v. Utley, 126 N.C. 997, 35 S.E. 428.

Then, too, all of the discrepancies and contradictions in the evidence, if such there be, come from variant statements made by the defendant to different witnesses. If these result in ultimate equivocation, the jury alone is authorized to find the facts or to say what they are, and to assess their value in the light of the attendant circumstances. A verdict is the jury's veredictumthe dictum of truth, or the pronouncement of the real truth of the matter.

Here, the defendant is quoted as saying to Henry Grayson that "we were fooling with an old gun and it went off", meaning he and the deceased were fooling with the gun when it fired, and Grayson quoted the defendant to the sheriff as saying, "he was fooling with an old gun and it went off".

On the other hand, the sheriff and the S B I agent quote the defendant as saying to them that Mrs. Colbert was drinking on the afternoon in question; that she wanted more beer and he would not give it to her; whereupon she threatened to kill herself and had the gun up to her chest when the defendant attempted to stop her and it went off, thus resulting in a misadventurous homicide. State v. Eldridge, 197 N.C. 626, 150 S.E. 125; State v. Whaley, 191 N.C. 387, 132 S.E. 6.

Initially, the defendant says there is no real contradiction in his statements to Grayson, the sheriff and the S B I agent; that his statement to Grayson was made *567 under excitement and on the spur of the moment and was intended only as a shorthand statement of the occurrence which is readily reconcilable with his later statements to the sheriff and the S B I agent. In the absence of the court's charge to the jury, which does not appear in the transcript, it is to be assumed the court correctly instructed the jury to reconcile the evidence, where reasonably susceptible of reconciliation, and thus the defendant presumably was given full benefit of his position in this respect in the jury's consideration of the evidence.

Moreover, taking the State's view of the different statements, the defendant says the record presents this question: Where the State offers contradictory statements of the defendant, some initially made which are inculpatory and others later made which are exculpatory, is the State bound by the later statements thus entitling the defendant to a dismissal of the action?

An affirmative answer is urged by the defendant. He contends that "it is neither charity nor common sense nor law" to permit a jury to infer a criminal occasion when the State's evidence, with equal or greater certainty, points to accident or misadventure as the cause of decedent's death, State v. Massey, 86 N.C. 658, and that a compulsory nonsuit or dismissal of the prosecution on demurrer to the evidence is suggested, if not required, by the following authorities: State v. Ray, 229 N.C. 40, 47 S.E.2d 494; State v. Watts, 224 N.C. 771, 32 S.E.2d 348; State v. Boyd, 223 N.C. 79, 25 S.E.2d 456, and cases cited; State v. Todd, 222 N.C. 346, 23 S.E.2d 47, and cases cited; State v. Cohoon, 206 N.C. 388, 174 S.E. 91.

While defendant's counsel have presented his case cogently and with much force, we are constrained to think the record, viewed as a whole, hardly pushes the prosecution into this position. There is the evidence of Mrs. Nellie Pope and the attendant circumstances, including the defendant's previous threat to kill the deceased, which would seem to bring the case within the principle announced in State v. Phillips, 227 N.C. 277, 41 S.E.2d 766, and State v. Gregory, 203 N.C. 528, 166 S.E. 387. The probative value of the evidence is for the twelve. The solicitor felt impelled to give the jury the benefit of all the evidence and to "let the chips fall wherever they may". An adverse answer to the question, however, may be found in State v. Robinson, 229 N.C. 647, 50 S.E.2d 740, and Jackson v. Hodges, 232 N.C. 694, loc. cit. 696, 62 S.E.2d 326.

Finally, the defendant says there is nothing on the record to show an intentional killing on his part; that the jury has so found, and that no adverse presumption arises to overcome the presumption of innocence, or to support the verdict of involuntary manslaughter. State v. Cranford, 231 N.C. 211, 56 S.E.2d 423; State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Edwards, 224 N.C. 577, 31 S.E.2d 762; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; State v. Godwin, 227 N.C. 449, 42 S.E.2d 617. And further, that his statements to the several witnesses, which were offered as worthy of belief, clearly reveal in their entirety, State v. Edwards, 211 N.C. 555, 191 S.E. 1, an accidental homicide or a self-inflicted lethal injury. State v. Coffey, 228 N.C. 119, 44 S.E.2d 886; State v. Penry, 220 N.C. 248, 17 S.E.2d 4; State v. Shu, 218 N.C. 387, 11 S.E.2d 155; State v. Montague, 195 N.C. 20, 141 S.E. 285; State v. Tillman, 146 N.C. 611, 60 S.E. 902; State v. Goodson, 107 N.C. 798, 12 S.E. 329. Again, we must refer to the absence of the charge from the transcript and assume the defendant's position in these respects was adequately explained to the jury. Evidently the defendant desires or craves complete vindication or nothing. No presumption is required to support a verdict of involuntary manslaughter, where the evidence permits such an inference. State v. Coble, 177 N.C. 588, 99 S.E. 339; State v. Stitt, 146 N.C. 643, 61 S.E. 566, 17 L.R. A., N.S., 308. Where one engages in an unlawful and dangerous act, such as "fooling with an old gun", i. e., using a loaded pistol in a careless and reckless manner, or pointing it at another, and kills the other by accident, he would be guilty of an unlawful *568 homicide or manslaughter. G.S. § 14-34; State v. Vines, 93 N.C. 493; State v. Trollinger, 162 N.C. 618, 77 S.E. 957; State v. Limerick, 146 N.C. 649, 61 S.E. 568.

Involuntary manslaughter has been defined to be, "Where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part not amounting to a felony, or from a lawful act negligently done". 1 Wharton Cr.Law, Sec. 305; State v. Williams, 231 N.C. 214, 56 S.E.2d 574; State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Turnage, 138 N.C. 566, 49 S.E. 913. Of course, nothing said herein militates in any way against the doctrine upheld in State v. Horton, 139 N.C. 588, 51 S.E. 945, 1 L.R.A., N.S., 991; State v. Satterfield, 198 N.C. 682, 153 S.E. 155, and other cases, of a misadventurous homicide.

After a searching investigation of the record and with full appreciation of the forceful argument of defendant's counsel, we are constrained to approve the submission of the case to the jury. Hence, on the record as presented, the verdict and judgment will be upheld.

No error.