State v. Powell

Annotate this Case

78 S.E.2d 248 (1953)

238 N.C. 527

STATE v. POWELL.

No. 289.

Supreme Court of North Carolina.

November 4, 1953.

*250 Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Gerald F. White, Raleigh, Member of Staff, for the State.

Louis A. Whitener, Hickory, for defendant, appellant.

PARKER, Justice.

Defendant's Assignment of Error No. One is to the admission over his objection of the following testimony of Dr. J. C. Reece, who performed an autopsy on the body of Bessie Rector Powell, and who was admitted by the defendant to be an expert witness as a physician and pathologist. Dr. Reece was asked these questions. "Q. You have described the wound on the finger of the deceased woman. Based upon your examination of her and your training and experience in matters of this sort, have you an opinion satisfactory to yourself where her hand was when the fatal bullet shot was fired? Objection OverruledException. A. I do. Q. Would you tell the court and jury what that opinion is? A. I think the hand was somewhere in front of the face in this particular area (indicating). Q. Would you say, Doctor, that it was turnedin other words like that, to her face? (indicating). A. Yes."

This witness spoke from a professional and personal examination of the body of Bessie Rector Powell, and the answers, to our minds, were clearly within the domain of expert opinion. The witness had testified in minute detail as to the penetration of the bullet through the ring finger of the right hand into the skull and brain of Bessie Rector Powell, and also the powder burns on her hand and forehead. His opinion required expert skill or knowledge in the medical or pathologic field about which a person of ordinary experience would not be capable of satisfactory conclusions, unaided by expert information from one learned in the medical profession. The questions and answers are approved and upheld, we think, in State v. Jones, 68 N.C. 443 (opinion of doctor who saw deceased as to his posture and position when shot); State v. Fox, 197 N.C. 478, 149 S.E. 735 (opinion of doctor that deceased was lying down when he received the fatal wound); State v. Stanley, 227 N.C. 650, 44 S.E.2d 196 (physician testified that deceased was in a prone position when fatal injuries inflicted); McManus v. Seaboard Air Line R. Co., 174 N.C. 735, *251 94 S.E. 455 (physician testified the intestate was lying down at time of injury); George v. Winston-Salem Southbound R. Co., 215 N.C. 773, 3 S.E.2d 286 (similar opinion testimony as in McManus case).

It has been frequently stated that the testimony of an expert witness should be excluded when it expresses an opinion on the very issue before the jury, but this rule is not inflexible. It is frequently relaxed in the admission of evidence as to ultimate facts in regard to matters of science, art or skill, Bruce v. O'Neal Flying Service, 234 N.C. 79, 66 S.E.2d 312; where cases are cited.

We have examined the cases relied upon by the defendant, and they have different facts.

Defendant's Assignment of Error No. One is overruled.

Defendant's Assignments of Errors Nos. Two and Three are to the refusal of the trial court to nonsuit the State as to murder in the second degree made at the close of the State's evidence, and renewed at the close of all the evidence. The defendant contended the court should have submitted the case to the jury on manslaughter alone.

This presents the question was there any substantial evidence to carry the State's case to the jury that the defendant was guilty of murder in the second degree. If so, it is a matter for the jury. State v. Ewing, 227 N.C. 535, 42 S.E.2d 676; State v. Bright, 237 N.C. 475, 75 S.E.2d 407.

The evidence for the State discloses these facts. His wife was drunk and in a very argumentative mood; they went to bed about 10:30 p. m.; he was sleepy and tried to get her to stop arguing, which she would not. Later on she was still making a noise, and wouldn't go to sleep. The defendant got out of bed, turned on the light and went into another room, got his pistol, and put it under his pillow turning off the light, and got back in bed. He got the pistol to scare her, to get her to hush, and go to sleep. She continued to argue. He raised up in bed, had the butt of the pistol in his hand, his finger on the trigger, and the pistol pointed at his wife. He told the sheriff he wasn't sure whether she grabbed at the pistol or the barrel. His wife was lying on the bed on her back. Under those conditions the pistol fired, and a bullet penetrated his wife's ring finger of her right hand, and entered her skull causing her death. The opinion of Dr. Reece, an expert witness, who performed the autopsy, was that his wife's right hand was in front of her face when the pistol fired.

Considering the evidence in the light most favorable to the State, and giving to it the benefit of every intendment upon the evidence and every reasonable inference to be drawn therefrom, State v. Smith, 237 N.C. 1, 74 S.E.2d 291, we are of the opinion that the trial judge was correct in submitting to the jury the question of an intentional killing of Bessie Rector Powell with a pistol. A pistol is a deadly weapon per se. State v. Beal, 170 N.C. 764, 87 S.E. 416.

The law is well established in this State that the intentional killing of a human being with a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree. When this is established by proof, the law casts upon the defendant the burden of showing to the satisfaction of the jury facts and circumstances sufficient to reduce the homicide to manslaughter, or to excuse it. State v. Burrage, 223 N.C. 129, 25 S.E.2d 393; State v. Staton, 227 N.C. 409, 42 S.E.2d 401; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188.

The defendant's Assignments of Errors Nos. Two and Three are without merit.

The remaining two assignments of errors are to the refusal of the court to set the verdict aside as contrary to the evidence, and to the signing of the judgment. They are overruled. The charge of the court is not brought forward.

*252 The facts of the case are gruesome. The defendant, who was not under the influence of intoxicants, after the foul and midnight murder of his wife, was found by the sheriff at 4:00 a. m. asleep in the bed drenched with her blood. It is difficult to imagine more heartless indifference.

In the trial below we find

No error.