State v. McLawhornAnnotate this Case
155 S.E.2d 198 (1967)
270 N.C. 622
STATE of North Carolina v. R. H. McLAWHORN.
Supreme Court of North Carolina.
June 20, 1967.
*201 T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.
C. E. Gerrans, Kingston, for defendant.
The evidence reveals that only one shot was fired at the time deceased received the bullet wound which caused his death. The State, having adduced testimony *202 from two witnesses that they saw defendant fire a pistol and that immediately thereafter Brown fell, exclaiming that he had been hit, clearly made out a case for the jury. State v. Smith, 268 N.C. 659, 151 S.E.2d 596; State v. Downey, 253 N.C. 348, 117 S.E.2d 39; State v. Brooks, 228 N.C. 68, 44 S.E.2d 482. Defendant's assignment of error based upon the denial of his motion for nonsuit is overruled.
Over defendant's objection, and for the purpose of corroborating the witnesses Kolonick, Freeman, and Quinlivan, the court permitted the last witness for the State, a Marine sergeant with the Criminal Investigation Department, to testify that Kolonick told him on the morning after the shooting that he had seen defendant fire the gun, and that the other two said they had seen defendant with it in his hand. Defendant assigns the admission of these statements as error, for that (1) they were not made in defendant's presence, and (2) the three witnesses had not first testified that they had spoken with the witness Bennett. This assignment of error is overruled upon the authority of State v. Brown, 249 N.C. 271, 106 S.E.2d 232, wherein Winborne, C. J., said: "(I)t is competent to corroborate a witness by showing that he has previously made the same statement as to the transaction as that given by him in his testimony, and that it is not necessary to ask the witness to whom such former statement, offered in corroboration, was made." Id. at 274, 106 S.E.2d at 235.
The court charged the jury that if the State had satisfied them beyond a reasonable doubt from the evidence that defendant had intentionally shot Brown with a pistol, thereby inflicting a wound which caused his death, the presumption would arise that the killing was unlawful and that it was done with malice, and that the burden then devolved upon defendant to satisfy the jury "[of such facts and circumstances, that is,] the legal provocation that will rob the crime of malice and thus reduce it to manslaughter." State v. Mangum, 245 N.C. 323, 96 S.E.2d 39; State v. Utley, 223 N.C. 39, 25 S.E.2d 195.
The judge thereafter gave the following contentions in behalf of defendant: (1) that defendant did not fire the shot which caused Brown's death; and (2) that if the jury should find that he did fire the shot, the shooting was without malice because he fired at a trespasser who had been ordered to leave but showed "signs that he was not leaving." In giving the final mandate, the court instructed the jury that if they found beyond a reasonable doubt that defendant intentionally shot Brown with a pistol and inflicted a wound which caused his death, nothing else appearing, defendant would be guilty of murder in the second degree, and that would be their verdict unless defendant had shown to their satisfaction "that he was not acting with malice but upon legal provocation, as the court has defined that term to mean to you." (Emphasis added.) If defendant had carried his burden, the jurors were instructed to acquit him of murder in the second degree and to consider whether he was guilty of manslaughter.
At no time in his charge did the judge define legal provocation. Defendant assigns this omission and the failure of the court to tell the jury what were the "facts and circumstances, that is, the legal provocation arising on the evidence, that would reduce the crime from second degree murder to manslaughter or that would excuse it altogether." He further assigns as error the failure of the court to charge upon accident, self-defense, and alibi.
Defendant offered no evidence of legal provocation, self-defense, or accident. His defense was that he did not fire the shot which caused Brown's death; that at the time of the shooting he had just stepped out of the office and started to the front of the house to use the phone or that he was in the office 40-60 feet away from the group in the yard. (He testified both ways.) Therefore, if any testimony required the trial judge to charge upon the legal provocation which would rebut the presumption *203 of malice arising from an intentional killing with a deadly weapon, it must be found in the State's evidence. A defendant is entitled to whatever advantage the State's evidence may afford him. State v. Downey, supra; State v. Crisp, 244 N.C. 407, 94 S.E.2d 402, 67 A.L.R.2d 236.
The State's evidence contains no suggestion that defendant shot Brown accidently. There is evidence that immediately after the shot was fired Griffin said, "Everything is O. K., that was just a blank." There was, however, no evidence that a pistol loaded with blanks was kept in the motel office for the purpose of frightening away trespassers. Nor was there any suggestion in the testimony that defendant thought the pistol contained blanks instead of live ammunition. Indeed, defendant testified that there was no pistol at the motel. The sailor, he said, could have shot Brown. The court did not err in failing to charge that defendant contended the killing was accidental. A defendant's assertion of accident is, of course, not an affirmative defense but merely a denial that he has committed an intentional killing. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337. In this case, the court instructed the jury explicitly that, in order to convict defendant, the State was required to prove that he had intentionally shot Brown.
If one kills another with a deadly weapon by reason of provocation "such as would naturally and reasonably arouse the passions of an ordinary man beyond his power of control," this sudden passion will rebut the presumption of malice, 26 Am.Jur., Homicide § 22 (1940), and reduce murder in the second degree to manslaughter. State v. Watson, 222 N.C. 672, 24 S.E.2d 540; State v. Merrick, 172 N.C. 870, 90 S.E. 257; State v. Merrick, 171 N.C. 788, 88 S.E. 501.
There was, however, no testimony offered by the State tending to show that defendant shot Brown in a sudden heat of passion caused by provocation which would cause an ordinary man to act so rashly on impulse and without due reflection. Neither Brown nor anyone else had made an assault upon defendant. State v. Hightower, 226 N.C. 62, 36 S.E.2d 649; State v. Mosley, 213 N.C. 304, 195 S.E. 830. Not one of the Marines had attempted to invade the motel; so no question arises as to his right to defend his habitation or place of business. State v. Miller, 267 N.C. 409, 148 S.E.2d 279. Four of the Marines were attempting to leave the motel premises with the fifth, as defendant had ordered them to do. We may assume that defendant became incensed because Brown was resisting his companions in their effort to take him out of the motel yard; still, under the circumstances here disclosed, the law does not deem Brown's trespass provocation sufficient to cause a man of ordinary firmness and average disposition to shoot him in a transport of passion he was unable to control."A mere trepass or entry upon one's premises other than his dwelling, not amounting to a felony, is not considered sufficient provocation to warrant the owner's using a deadly weapon in its defense, or sufficient provocation to arouse the degree of passion requisite to reduce from murder to manslaughter his crime in slaying the intruder, notwithstanding the killing may have been necessary to prevent the trespass." 26 Am.Jur., Homicide § 27 (1940); see State v. Morgan, 25 N.C. 186.
If defendant intentionally shot Brown and caused his death, he could excuse the homicide altogether and secure his acquittal only by satisfying the jury that he lawfully killed him in self-defense. State v. Fowler, 250 N.C. 595, 108 S.E.2d 892.
Undoubtedly, the proprietor of an inn, motel, or similar establishment, has a right to repel an unprovoked assault upon one of its guests, provided he uses no more force than is reasonably necessary to protect the guest. "He could not kill the assailant of his patron merely because the patron had been assaulted." Steele v. State, *204 194 Ark. 497, 108 S.W.2d 474. Moreover, one may lawfully do in another's defense only what the other might lawfully do in his own defense. State v. Ritter, 239 N.C. 89, 79 S.E.2d 164; State v. Cox, 153 N.C. 638, 69 S.E. 419. In this case it was the sailor who, by his own admission, started the fight. Conceding that he had cause to be angry, he nonetheless voluntarily, that is aggressively, willingly, and without legal provocation, entered into a fight with Brown. The sailor, therefore, could not have invoked the doctrine of self-defense without first withdrawing from the fight and giving notice to his adversary that he had done so. State v. Church, 229 N.C. 718, 51 S.E.2d 345; State v. Davis, 225 N.C. 117, 33 S.E.2d 623. However, were we to concede, arguendo, that defendant had the right to interfere in the fight on the side of the sailor, Brown's four companions were doing their best to withdraw Brown from the fight and to leave the premises. The evidence discloses no reason to believe that they and the sailor could not have controlled the resisting Brown. Furthermore, the sailor had discarded his unloaded pistol, and none of the Marines had displayed any deadly weapon. The State's evidence, therefore, discloses no circumstances which might reasonably have caused defendant to believe that it was necessary for him to shoot Brown to save the sailor or anybody else from death or great bodily harm. Nor does it disclose that defendant gave Brown or the others any warning of his intention to shoot if they did not leave.
In the instant transcript, there is no evidence either of self-defense or of legal provocation which would rebut the presumption of malice if the jury found that defendant intentionally shot Brown and thereby caused his death. Thus, the court's failure to define legal provocation was not error. The court's reference to legal provocation and the statement of contentions in defendant's behalf with reference thereto was favorable rather than prejudicial to him. The judge would have been correct had he told the jury that if they were satisfied beyond a reasonable doubt that defendant intentionally fired the shot which caused Brown's death, that "the entire evidence disclosed no mitigating, excusing, or justifying circumstances" which would reduce the homicide from murder in the second degree to manslaughter, or which would excuse it altogether upon the ground of self-defense. State v. Gregory, 203 N.C. 528, 166 S.E. 387.
Upon this record, if defendant fired the shot which killed Brown, he is guilty of murder in the second degree. If he is not the man who pulled the trigger, he is not guilty of any crime. The judge, in his charge, told the jury quite plainly that "defendant contends throughout that he did not shoot the pistol at all." He also charged them that if the State failed to satisfy them beyond a reasonable doubt that defendant intentionally killed deceased with a deadly weapon, it would be their duty to return a verdict of not guilty. Defendant was on the premises at the time Brown was shot and, by his own testimony, not over 60 feet from him at the time. If he was in the motel office, he could have fired the shot from the doorhe said he was standing in the door when he saw the fight beginand there is not the slightest evidence to negate the possibility that he could have fired the shot if he "had just stepped out of the office and started to the front of the house to use the phone." Defendant's contention that the judge erred in failing to charge on alibi is, therefore, also without merit. To entitle a defendant to a charge on alibi there must be evidence that at the time the crime was committed he was at a particular place which would make it impossible for him to have committed the crime. State v. Green, 268 N.C. 690, 151 S.E.2d 606. Defendant was present in the immediate area when Brown was felled by a shot. The only question in the case was whether he was the man who fired the pistol. He said he was not the man. Other witnesses said he was. The jury resolved the issue of fact against defendant, and in the trial we find