State v. Winecoff

186 S.E.2d 6 (1972)

280 N.C. 420

STATE of North Carolina v. Mary WINECOFF.

No. 11.

Supreme Court of North Carolina.

January 28, 1972.

*7 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Parks N. Icenhour for the State.

James C. Davis and Clarence E. Horton, Jr., Concord, for defendant.

BRANCH, Justice.

Defendant contends that the trial judge committed prejudicial error in failing to charge that the jury should receive the alleged dying declarations of Frank Winecoff, Jr., with caution.

Defendant did not specifically request such instructions.

In the case of State v. Collins, 189 N.C. 15, 126 S.E. 98, it is stated:

The eleventh exception, which relates to the instruction pertaining to the alleged dying declarations of the deceased, is not tenable. We have held that the evidence as to these declarations was competent; and, while the court might properly have told the jury to consider *8 this evidence with due caution, the failure to do so in the absence of a special request will not be held for reversible error. We have repeatedly said that, as to subordinate features or particular phases of the evidence, proper request should be made for appropriate instructions. State v. O'Neal, 187 N.C. 22, 120 S.E. 817.

Defendant cites and relies on the cases of State v. Williams, 67 N.C. 12, State v. Kennedy, 169 N.C. 326, 85 S.E. 42, and State v. Whitson, 111 N.C. 695, 16 S.E. 332, as authority to support his contention. These cases are distinguishable.

The case of State v. Williams, supra, contains the equivocal statement that "Several eminent judges have felt it a duty to say that they [dying declarations] should be received with much caution, and that the rule which authorizes their admission should not be extended beyond the reasons which justify it." The quoted statement is dicta since the statement was directed only to the admissibility of dying declarations and to the reasons for receiving such declarations. The case did not consider or turn upon proper cautionary instructions to the jury. In each of the remaining cases cited by defendant a specific request was made for the cautionary instruction.

We conclude that when request is made for such instruction, the judge must instruct the jury to receive a dying declaration with caution. State v. Whitson, supra; State v. Kennedy, supra; State v. Williams, supra. Absent such specific request, it is not prejudicial error for the trial judge to fail to give a cautionary instruction as to dying declarations. State v. Collins, supra; State v. O'Neal, 187 N.C. 22, 120 S.E. 817.

This assignment of error is overruled.

Defendant assigns as error the admission into evidence of statements by the witness R. M. Faggart that on 24 October 1969 he sold her the single barrel 12-gauge shotgun which was marked State's Exhibit "A".

It is well settled in this jurisdiction that in a criminal action any object having a relevant connection with the case is admissible in evidence. State v. Jarrett, 271 N.C. 576, 157 S.E.2d 4.

In the case of State v. Macklin, 210 N.C. 496, 187 S.E. 785, it is stated: "It was competent to show the possession of a shotgun by defendant about the time of the homicide . . . ." State's Exhibit "A" was found in the woodpile at the Winecoff home with a discharged shell in it on the same day that deceased was shot. The testimony that defendant had purchased this very gun within a period of approximately six months was relevant and was properly admitted. Assuming, arguendo, that the evidence was erroneously admitted, defendant has failed to show that such error was prejudicial. The burden is on defendant not only to show error, but also to show that the error complained of affected the result of the trial adversely to her. State v. Woolard, 260 N.C. 133, 132 S.E.2d 364; State v. Mumford, 252 N.C. 227, 113 S.E.2d 363.

Under the circumstances of this case the admission of the challenged evidence appears to favor defendant. This evidence shows that the gun sold to defendant was a single barrel gun. The eyewitness to the shooting testified that a double barrel gun was used to inflict the wounds. This evidence, particularly when considered with the trial judge's refusal to admit the shotgun into evidence, tends to create confusion in and prejudice to the State's case rather than defendant's.

For reasons stated, this assignment of error is overruled.

Defendant next contends that the trial judge erred in his charge by expressing the opinion that defendant was the person who inflicted the fatal wound. She specifically points to the following portion of the charge:

To reduce the offense of voluntary manslaughter, the defense must satisfy *9 you of three things from the evidence offered by the defendant, or evidence offered by the State: First; Did the defendant kill the deceased? Second: Did she kill him intentionally? Third: Did she kill him unlawfully in the heat of passion by reason of anger suddenly aroused, and before such time had elapsed for passion to subside and reason to resume sway and habitual control?

Prior thereto the trial judge had charged:

Under our system of justice when a defendant pleads not guilty, he or she is not required to prove his or her innocence, they are presumed to be innocent. The State must prove to you that the defendant is guilty beyond a reasonable doubt. . . . . . . The State must prove beyond a reasonable doubt that the defendant intentionally shot, in this case, shot Frank Winecoff, Jr., with a deadly weapon and that Frank Winecoff died as a natural and probable result of such act.

In his final mandate to the jury the Judge instructed as follows:

I charge you, ladies and gentlemen of the jury, if you find from the evidence and beyond a reasonable doubt that on or about the 19th day of April, 1970, the defendant, Mary Winecoff, intentionally shot Frank Winecoff, Jr., with a deadly weapon, to wit, a shotgun; and that Frank Winecoff's death was a natural and probable result of the shot or act of Mary Winecoff, it would be your duty to return the verdict of guilty of second degree murder unless from the evidence you are satisfied that she killed, that is Mary Winecoff killed Frank Winecoff, Jr., in the heat of a sudden passion, which was produced by the acts of Frank Winecoff which had the natural tendency to produce said passion in the defendant, and this passion continued until she killed Frank Winecoff, in this case it would be your duty to return the verdict of guilty of manslaughter. If the State has failed to prove from the evidence beyond a reasonable doubt that the defendant intentionally shot and killed Frank Winecoff or that Frank Winecoff's death was a natural and probable result of Mary Winecoff's act, it would be your duty to find the defendant not guilty. So in this case you may return one of three verdicts. You may find the defendant guilty of second degree murder, manslaughter, or not guilty.

"The judge's words may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous impressions may be inferred." State v. Alexander, 279 N.C. 527, 184 S.E.2d 274.

While we do not approve the interrogatory form of the charge challenged by defendant, we do not find in it an expression of opinion prejudicial to defendant. A contextual reading of the entire charge reveals a clear statement of the law regarding second degree murder and manslaughter, properly applied to the facts of the case. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221; State v. Barrow, 276 N.C. 381, 172 S.E.2d 512; State v. Todd, 264 N.C. 524, 142 S.E.2d 154; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.

Nor do we find merit in defendant's contention that the trial judge erroneously submitted the charge on manslaughter to the jury. There was ample evidence to support a verdict of manslaughter.

A careful examination of this entire record discloses no prejudicial error.

No Error.