State v. SimpsonAnnotate this Case
93 S.E.2d 425 (1956)
244 N.C. 325
STATE v. Emma SIMPSON.
Supreme Court of North Carolina.
June 26, 1956.
*429 Wm. B. Rodman, Jr., Atty. Gen., and Claude L. Bruton, Asst. Atty. Gen., for the State.
Charles G. McLean, Lumberton, for defendant, appellant.
These facts are undisputed. The death weapon was McNair's .22-caliber pistol. It fired twice. Two bullets lodged in Danzy's body. McNair had the pistol when it fired the first time.
These questions arise: Did defendant have the pistol when it fired the second time? If so, under what circumstances did it fire? Which shot, the first or the second, caused Danzy's death?
Defendant demurred to the evidence and moved for judgment as of nonsuit. G.S. § 15-173. On such demurrer and motion, the evidence must be considered in the light most favorable to the State. Contradictions and discrepancies in the testimony of State's witnesses are to be resolved by the jury. State v. Robinson, 229 N.C. 647, 50 S.E.2d 740.
No autopsy was performed. No medical expert examined Danzy's body. Where each bullet ultimately lodged is not disclosed. Assuming the competency upon this record of the testimony of the deputy sheriff, of undisclosed qualifications as to probes made by him and what was indicated thereby, the evidence is somewhat less than satisfactory in the investigation of a matter of such great consequence. It indicates the wisdom of such legislation as Ch. 972, Session Laws of 1955, relating to Postmortem Medicolegal Examinations.
Furthermore, the evidence is silent as to fingerprints on the pistol. Some time after the second shot, and after Swindell had replaced the light bulb and there was light in the front room, Emma was wrapping the pistol in a piece of grey shirt. No one saw the pistol in her possession before that time. She made no attempt then or later to conceal it. Presumably, the State contended that she was wiping her fingerprints from the pistol. If there were no fingerprints thereon, this contention would have support; for, had she wiped fingerprints from the pistol, McNair's fingerprints as well as her own would have been removed. On the other hand, if investigation had disclosed McNair's fingerprints on the pistol and these alone, this would have been a strong circumstance in Emma's favor. Nothing was done to aid the jury as to this significant aspect of the case.
Considering the circumstantial evidence in the light most favorable to the State, under the rule as recently stated in State v. Stephens, N.C., 93 S.E.2d 431, we are constrained to hold that the evidence was sufficient to be submitted to the jury as to whether Emma had the pistol when the second shot was fired. Credible or incredible, there is evidence tending to exclude the hypothesis that one of the others in the room then had the pistol. McNair testified that he must have dropped it, when it fired the first time, albeit he knew it not until he had reached his home.
Moreover, applying the same rule, we are constrained to hold that the evidence was sufficient for submission to the jury as to whether the second shot penetrated the right side of Danzy's chest. Credible or incredible, all witnesses have testified *430 that when the light went out in the front room Danzy was wearing only the long underwear. The State's theory is that Danzy put on the overalls and brown shirt after the light went out and after he had been wounded by the first shot. It taxes credulity to the utmost to picture Danzy, while wounded and under circumstances of violent commotion and of utter darkness, maneuvering to locate and to put on (at least partially) his overalls and brown shirt. The scene was such that one would not suppose that he was then moved by a sense of delicacy because insufficiently clad. Even so, the evidence posed a jury question.
The hypothetical question assumed a finding by the jury beyond a reasonable doubt of this vital fact, namely, "that Danzy Simpson then fell down and died." There is no evidence as to when Danzy fell or as to when he died, that is, within the period between the first shot and the time the light was replaced in the front room. All that the evidence discloses is that when the light was replaced, some time after the second shot fired, Danzy was on the floor, dead, with two bullets lodged in his body. True, McNair ventured to testify that when he left the house, "Danzy was standing near the bed." With the room in complete darkness, this would indicate extraordinary vision. The location of the bed, with reference to the front door, is not disclosed. And be it remembered that McNair's testimony is that he was two feet from the front door when Emma and Danzy assaulted him and the pistol fired the first time. However that may be, the undisputed testimony of Swindell is that two or three minutes elapsed between the first and second shots; and Swindell gave no testimony as to when Danzy fell or under what circumstances. Incorporation in the hypothetical question of an assumed finding as to this vital fact, of which there was no evidence, would be ground for a new trial. State v. Holly, 155 N.C. 485, 71 S.E. 450; Stansbury, North Carolina Evidence, sec. 137.
However, we have reached the conclusion that defendant's demurrer to the evidence should have been sustained and the case dismissed as of nonsuit.
There is no evidence that Emma and McNair were acting in concert. State v. Barber, 197 N.C. 554, 149 S.E. 857. The testimony of McNair expressly negatives any such idea. His testimony is positive that both Emma and Danzy ordered him out of their house and were actively attacking him to make him leave. An appreciable period of time elapsed between the two shots, if the evidence is considered in the light most favorable to the State. According to McNair, he was out of earshot when the pistol fired the second time. The two shots were independent of each other.
Of course, if the second shot was the sole cause of Danzy's death, or was a contributing proximate cause thereof, or accelerated his death, the case against this defendant would rest on different principles. State v. Scates, 50 N.C. 420; State v. Hambright, 111 N.C. 707, 16 S.E. 411; State v. Medlin, 126 N.C. 1127, 36 S.E. 344; State v. Everett, 194 N.C. 442, 140 S.E. 22. But here, the question is whether Danzy was dead or alive when the pistol fired the second time.
It was incumbent upon the State to establish that the bullet wound inflicted when the pistol fired while in possession of defendant was the proximate cause or a concurring or an accelerating proximate cause of Danzy's death. State v. Phelps, 242 N.C. 540, 89 S.E.2d 132; State v. Satterfield, 198 N.C. 682, 153 S.E. 155; State v. Everett, supra. We are constrained to hold that the evidence adduced by the State, which discloses that the medical expert could not determine in the absence of an autopsy which of the two wounds caused death, and in the absence of evidence as to when Danzy died or as to when and under what circumstances he fell to the floor, leaves in the realm of conjecture the question as to whether Danzy was dead when the pistol fired the second time. State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Carter, 204 N.C. 304, 168 S.E. 204. Whatever else it may be, it is not criminal homicide to shoot a dead body.
*431 Having reached this conclusion, we need not consider whether the circumstantial evidence was sufficient to warrant the instructions to the jury as to the presumptions that arise when one person intentionally shoots another and thereby proximately causes his death. State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.
It seems appropriate to observe that no serious harm would likely have occurred were it not for the fact that the loaded pistol, then concealed in his hip pocket, was brought into the Simpson house by McNair. According to Dell's testimony, McNair had it in his hand soon after the original fuss between Emma and Danzy had started. It seems natural that both Danzy and Emma should want him out of the house immediately. Whoever had the pistol when it fired the second time, McNair was responsible for its presence and availability if not for its use.