State v. Wynn

180 S.E.2d 135 (1971)

278 N.C. 513

STATE of North Carolina v. Sallie Jo WYNN.

No. 37.

Supreme Court of North Carolina.

April 14, 1971.

*137 Atty. Gen. Robert Morgan, and Asst. Attys. Gen. T. Buie Costen and William W. Melvin, for the State.

Roy H. Patton, Jr., Monroe, for defendant.

BRANCH, Justice.

Defendant contends that the trial judge erred in accepting her plea of guilty of manslaughter because it was not freely, voluntarily and understandingly made.

Defendant points to two portions of the record which relate to the trial judge's examination of her prior to his approval of her tendered plea of guilty of manslaughter.

The first exchange between the trial judge and defendant was as follows:

Q. Are you able to understand me now? A. Yes, sir. Q. Are you under the influence of any alcohol, drugs, pills or medicines of any sort at this time? A. Little alcohol. *138 Q. I'm talking about now? A. No, sir. Q. You're sober now? A. Yes, sir. Q. You haven't taken any drugs? A. No, sir.

Defendant argues that the court should have determined exactly what she meant by the words "little alcohol." Her affirmative answer to the question, "You are sober now?" did exactly that. It is clear that she referred to the morning of the killing. At the time the trial judge posed his questions he was interested solely in her sobriety at the time when she tendered the plea of guilty.

The other portion of the record contains this colloquy between the judge and defendant:

Q. You still consent to that plea? It's up to you and Mr. Williams. You still consent to that plea? A. Yes, sir. Q. You don't have to. MR. WILLIAMS: I just told her she didn't have to if she didn't want to. Q. You have any other questions about your plea? A. No, sir. COURT: I think you better go over this with her. If she has any questions, I'd rather she'd bring it up now than later. NOTE: Conference with defendant by Mr. Williams. Q. Can you read and write? A. Yes, sir. COURT: Does she understand that? MR. WILLIAMS: Yes, sir. COURT: Let her stand up before the Clerk and be sworn. MR. WILLIAMS: I have explained it to her 3 or 4 times. NOTE: Defendant sworn to Transcript of Plea.

This portion of the record reflects only the concern of a careful and painstaking trial judge that this youthful defendant be given every opportunity to act understandingly and voluntarily in the entry of her plea. The trial judge carefully examined defendant concerning the voluntariness of her plea and, after his personal examination, he required defendant's privately employed attorney to again explain to her the effect of entering the plea of guilty.

Thereupon, the trial judge found that defendant's plea of guilty of voluntary manslaughter was freely, voluntarily and understandingly made. There was plenary evidence to support this finding, and where the evidence supports a finding that a defendant freely, voluntarily and understandingly enters a plea of guilty, the acceptance of the plea will not be disturbed. State v. Jones, N.C., 179 S.E.2d 433 (filed 10 March 1971); State v. Caldwell, 269 N.C. 521, 153 S.E.2d 34; State v. Perry, 265 N.C. 517, 144 S.E.2d 591; State v. Alston, 264 N.C. 398, 141 S.E.2d 793; Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747. We hold that the trial judge did not err in accepting and approving the entry of defendant's plea.

Defendant next contends that the trial judge erred in not advising defendant of withdraw her plea of guilty of manslaughter because the evidence was not sufficient to support a plea or verdict of guilty of voluntary manslaughter.

Defendant's voluntary plea of guilty obviated any necessity of proof by the State, and when such plea was entered, her appeal presents for review only whether the indictment charges an offense punishable under the Constitution and law. State v. Caldwell, supra; State v. Perry, supra; State v. Hodge and State v. White, 267 N.C. 238, 147 S.E.2d 881. The primary *139 function of the court's discretionary decision to hear evidence after a voluntary plea of guilty is entered is to determine the nature and extent of punishment to be imposed; however, if the court determines that the evidence is insufficient to convict the defendant before a jury of the crime to which he has pleaded guilty, the court may in its sound discretion allow the defendant to withdraw his plea. State v. Branner, 149 N.C. 559, 63 S.E. 169; State v. Barbour, 243 N.C. 265, 90 S.E.2d 388; State v. Caldwell, supra; State v. Crandall, 225 N.C. 148, 33 S.E.2d 861.

Voluntary manslaughter is the unlawful killing of a human being without malice, express or implied, and without premeditation or deliberation. State v. Downey, 253 N.C. 348, 117 S.E.2d 39; State v. Street, 241 N.C. 689, 86 S.E.2d 277; State v. Burrage, 223 N.C. 129, 25 S.E.2d 393. One who kills a human being while under the influence of passion or in the heat of blood produced by adequate provocation is guilty of manslaughter. State v. Cooper, 273 N.C. 51, 159 S.E.2d 305; State v. Watson, 222 N.C. 672, 24 S.E.2d 540.

In connection with this contention defendant argues that she was not guilty because she did not intend to harm the deceased, Otha Wynn.

It is an accepted principle of law that where one is engaged in an affray with another and unintentionally kills a bystander or a third person, his act shall be interpreted with reference to his intent and conduct towards his adversary. Criminal liability, if any, and the degree of homicide must be thereby determined. Such a person is guilty or innocent exactly as though the fatal act had caused the death of his adversary. It has been aptly stated that "The malice or intent follows the bullet." 40 Am.Jur., 2d, Homicide, § 11, p. 302; State v. Rogers, 273 N.C. 330, 159 S.E.2d 900; State v. Dalton, 178 N.C. 779, 101 S.E. 548.

Finally, defendant takes the position that the trial court should have advised her to withdraw her plea because the evidence clearly showed that she acted in self-defense.

If a person be without fault in bringing on an affray, he may kill in self-defense if it is necessary, or appears to him to be necessary, in order to save himself from death or great bodily harm. The reasonableness of his apprehension is for the jury to determine from the circumstances as they appeared to him. State v. Cooper, supra; State v. Kirby, 273 N.C. 306, 160 S.E.2d 24; State v. Miller, 267 N.C. 409, 148 S.E.2d 279. This defense cannot be invoked when a person aggressively and willingly enters into a fight without legal excuse or provocation. State v. Church, 229 N.C. 718, 51 S.E.2d 345. And in exercising the right of self-defense one can use no more force than was or reasonably appeared necessary under the circumstances to protect himself from death or great bodily harm. The use of excessive force in self-defense which results in a killing constitutes at least manslaughter. State v. Cooper, supra; State v. Mosley, 213 N.C. 304, 195 S.E. 830; State v. Glenn, 198 N.C. 79, 150 S.E. 663.

Defendant's action in following her husband from the house after he had quit the first fight negates any contention that she was without fault. The evidence allows a reasonable inference that she willingly entered into a second affray and at that time used excessive force under the circumstances. Certainly, the evidence as to her claim of self-defense was not so compelling as to demand that the trial judge allow her to withdraw her voluntary plea of guilty.

There was ample evidence from which a jury could have properly returned a verdict of guilty of voluntary manslaughter. In fact, the evidence in this case might well have justified a jury verdict of a higher degree of homicide.

*140 We have carefully examined the entire record, and in the trial and proceedings below we find

No error.