State v. WaltersAnnotate this Case
170 S.E.2d 484 (1969)
275 N.C. 615
STATE of North Carolina v. Mitchell Grant WALTERS.
Supreme Court of North Carolina.
November 19, 1969.
*489 Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., Andrew A. Vanore, Jr., Raleigh, Staff Atty., Burley B. Mitchell, Jr., Staff Atty., for the State.
Joe Hill Barrington, Jr., Lumberton, Nance, Collier, Singleton, Kirkman & Herndon, by James R. Nance, Fayetteville, for defendant.
The tragedy described by the evidence may have had its inception in the misconduct of the deceased in making improper advances to the defendant's wife by following her automobile, blowing his horn, and making signs which she construed as an invitation for her "to follow him off some place". On the other hand, Mrs. Walters may have misconstrued the conduct of the deceased. As she passed his filling station on her way home from the drugstore, the deceased left the station and entered the street behind her as she drove by. She was on her way home. He probably was on his way home for lunch. They lived within two blocks of each other. His way home, and hers, would naturally be the same except for the last few blocks. That Mrs. Walters may have misconstrued the conduct of the deceased would not necessarily affect the defendant's reaction to it. She was frightened and upset. Her conclusions were that the intentions of the deceased were improper. However, if his actions and intentions were misconstrued, his reaction would not be conciliatory when accused by the armed husband, and upon his denial, called a liar. The deceased's side of the story must remain untold.
The defendant contends the court, in the trial, committed errors in the exclusion of evidence which were sufficiently prejudicial to entitle him to a new trial. By way of explaining his possession of the pistol on Sunday, and while he was out of uniform and off duty, he called the Chief of Police who testified that police officers were subject to call at all times and while off duty were permitted, but not required to carry their arms. The defendant testified it was his habit to carry his arms at all times. He undertook to testify as to the teachings of the Institute of Government with respect to the right of peace officers to be armed while off duty. The trial court excluded the evidence apparently on the ground it violated the hearsay rule. State v. Lassiter, 191 N.C. 210, 131 S.E. 577; State v. Reid, 178 N.C. 745, 101 S.E. 104. What the defendant understood to be the teachings of some unidentified instructor could add little, if anything, to the rules of the Lumberton Police Department, of which he was a member. The defendant had the benefit of the rule which permitted him to go armed when off duty, at his option.
As to the right of the defendant to be armed, we may assume that Judge Hall instructed the jury fully and correctly. The court's charge is not a part of the case on appeal. The defendant's counsel omitted it from our view. At the time of the difficulty, the defendant did not claim to be acting as an officer, but as he said, "one citizen to another". The exclusion of teachings at the Institute of Government cannot be held to be prejudicial error. The other assignments of error based on the admission or exclusion of evidence have been examined and have been found to be without merit. Likewise without merit is the objection the court permitted the State to offer rebuttal evidence after the defense had rested.
The main thrust of the defendant's objection to the trial is directed to the court's action in submitting to the jury the issue of murder in the first degree. Specifically, the defendant contends the evidence *490 was insufficient to show premeditation and deliberation and the court should have withdrawn the capital charge from the jury. What is evidence is a question of law for the court. What the evidence proves or fails to prove is a question of fact for the jury. The court decides competency; the jury decides weight. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, and many cases cited.
In order properly to fulfill its duty, the trial court must determine the preliminary question whether the evidence, in its light most favorable to the State, is sufficient to permit the jury to make a legitimate inference and finding that the defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished the purpose. "No fixed length of time is required for the mental processes of premeditation and deliberation constituting an element of the offense of murder in the first degree, and it is sufficient if these processes occur prior to, and not simultaneously with, the killing." Strong's N.C.Index, 2d Ed., Vol. 4, p. 196 (see Homicide, Murder in the First Degree, Premeditated and Deliberate).
Premeditation and deliberation are not usually susceptible of direct proof, and are therefore susceptible of proof by circumstances from which the facts sought to be proved may be inferred. State v. Watson, 222 N.C. 672, 24 S.E.2d 540; State v. Evans, 198 N.C. 82, 150 S.E. 678. "Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: Want of provocation on the part of deceased. State v. Matheson, 225 N.C. 109, 111, 33 S.E.2d 590; State v. Hammonds, 216 N.C. 67, 75, 3 S.E.2d 439; State v. Buffkin, 209 N.C. 117, 126, 183 S.E. 543. The conduct of defendant before and after the killing. State v. Lamm, 232 N.C. 402, 406, 61 S.E.2d 188; State v. Chavis, 231 N.C. 307, 311, 56 S.E.2d 678; State v. Harris, 223 N.C. 697, 701, 28 S.E.2d 232. Threats and declarations of defendant before and during the course of the occurrence giving rise to the death of deceased. State v. Dockery, 238 N.C. 222, 224, 77 S.E.2d 664; State v. Hudson, 218 N.C. 219, 230, 10 S.E.2d 730; State v. Hawkins, 214 N.C. 326, 331, 199 S.E. 284; State v. Bowser, supra (214 N.C. 249, 199 S.E. 31). The dealing of lethal blows after deceased has been felled and rendered helpless. State v. Artis, 227 N.C. 371, 373, 42 S.E.2d 409; State v. Taylor, 213 N.C. 521, 523, 196 S.E. 832." State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 96 A.L.R.2d 1422.
The question of law before the trial judge and now before us on appeal is this: Was the evidence sufficient to permit a legitimate inference the defendant, after premeditation and deliberation, intentionally shot and killed Horace Britt? On this subject, Robert Britt testified that about 1:30 on the fatal day the defendant came to the filling station. "He said my brother had been following his wife. He asked if Horace was there and whether he was drinking. I told him no. He said the s. o. b. would be better off if he was." Mrs. Britt testified that between 2:30 and 3:00 the defendant called her over the phone and asked her if Horace was there. On being told that he might be at the filling station, the defendant said he had already been there. The defendant stated "Barbara thinks Horace has been following her and motioning like he wanted her to follow him off some place". He said he did not like Horace anyway; that what he needed was a bullet in the right place; that he may well be the one to do it. Later the same day, after 5:00, the defendant came to the filling station where the witness Lowry and the deceased were checking their accounts. The defendant provoked an altercation first by language, then by threatened assault with a pair of handcuffs, whereupon the deceased reacted by picking up a tire tool. The defendant then shot him first in the leg and when he fell fired the fatal shot while he was down. The course of the bullet corroborates Lowry's evidence.
The defense, by its evidence, featured the size, as well as the violent and dangerous *491 character of the deceased. The defendant, on cross examination with respect to the threats, said he did not precisely say that he might get mad enough to slap Horace in the face. He said there would not be any trouble between them as the worst possible thing he could do was to slap his face. When an armed and angry man enters the place of business where the owner, a dangerous and violent man, is at work and calls him a liar, he may expect some unfavorable reaction. Does not the defendant's attitude, together with his treats and efforts to come to grips with the deceased, permit a legitimate inference the defendant planned to provoke the deceased into some aggressive action and then shoot him down before he could defend himself? After the two shots were fired and Horace Britt was down, according to the witness Lowry, the first thing he remembers Walters saying was "It was self-defense". Lowry testified, "The first thing I remember, Mr. Walters said, it was self-defense, looked at me and said, `You saw it.' I said, yes; you drew the handcuffs first."
The evidence makes out an aggravated case of murder in the second degree. There was enough evidence, however, of murder in the first degree to require the court to submit that issue to the jury and to sustain its verdict. The "self-defense" proclaimed by the defendant, while the smoking pistol was still in his hand, may have caused the jury to believe self-defense was a part of the plan from the beginning of the controversy. The evidence permits the inference the defendant was the aggressor and advanced to the attack at all stages of the controversy. According to the evidence, the defendant, beginning before two o'clock, was seeking the confrontation until it culminated at five o'clock in the fatal shooting.
The trial court concluded as a matter of law that the evidence of premeditation and deliberation was sufficient to take the case to the jury and to sustain the verdict. In the trial and judgment we find