State v. Cole

185 S.E.2d 833 (1972)

280 N.C. 398

STATE of North Carolina v. James Lewis COLE.

No. 126.

Supreme Court of North Carolina.

January 28, 1972.

*835 Robert Morgan, Atty. Gen., by Henry T. Rosser, Asst. Atty. Gen., for the State.

Sanford, Cannon, Adams & McCullough by John H. Parker, Raleigh, for defendant appellant.

HIGGINS, Justice.

By brief, the defendant presents four questions for review: I. Did the trial court err in its instructions on second degree murder and appellant's defenses? II. Did the trial court err in denying the defendant's motion for judgment of nonsuit? III. Did the trial court err in denying the defendant's motion for a new trial? IV. Did the trial court err in signing and entering the judgment as set out in the record? Obviously Questions III and IV are formal. Answers to them depend upon the answers to Questions I and II.

In logical sequence the first question is the sufficiency of the evidence to go to the jury on the charge of murder in the first degree, or on any of the lesser included offenses. On the question of sufficiency, the evidence must be viewed in the light most favorable to the State. Any inconsistencies or contradictions must be resolved in favor of the State. State v. Robbins, 275 N.C. 537, 169 S.E.2d 858; State v. Bogan, 266 N.C. 99, 145 S.E.2d 374; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.

The evidence disclosed the defendant first picked a fight with Mozelle and Rozelle Bryant who were sitting at a table in the Torch Club. He first assaulted one of the girls. The other hit him with a chair. During the commotion which followed, Alex Bryant appeared at the Club wearing his work apron. The evidence is silent, but it appears probable someone notified him of the difficulty involving his sisters. Angry words but no blows were exchanged between Cole and Bryant. The latter returned to his work.

Within a few minutes the defendant appeared at the grocery store. On entering, he made a vulgar announcement not repeated here. The State contends the defendant entered the grocery store for a further confrontation. The defendant contended he entered the store in search of a Band-Aid to stop the bleeding from his head wound which was inflicted by Rozelle's chair. He admitted, however, he opened and concealed his knife before entering the store. The defendant further contended he and the deceased were scuffling over the deceased's pistol at the time it was discharged.

The defendant's contentions are contradicted by the evidence and by his conduct. The opening and concealing of his knife and the vulgar announcement were consistent with a search for trouble rather than a search for a Band-Aid. The entry of the bullet from the rear of the neck would be a difficult and unusual result from a scuffle over the pistol while the parties were facing each other. The fact the pistol was in the defendant's possession when he left the scene, indicates that perhaps he acquired possession in the scuffle and then fired the fatal shot. At all events, the evidence was sufficient to go to the jury on the charge of murder and the lesser included offenses. The motion to dismiss was properly overruled. State v. Perry, 276 N.C. 339, 172 S.E.2d 541; State v. Jennings, 276 N.C. 157, 171 S.E.2d 447; State v. Meadows, 272 N.C. *836 327, 158 S.E.2d 638; State v. Foust, 258 N.C. 453, 128 S.E.2d 889.

The first objection to the charge involves the following: "Second degree murder is the unlawful killing of a human being without (emphasis added) malice and without premeditation and deliberation." Malice is a necessary element of murder in the second degree. If unexplained, this error in the charge would require a new trial since the jury found murder in the second degree. However, the court immediately followed the erroneous instruction with the statement malice is a necessary element of murder in the second degree. At the conclusion of the charge, the court gave this additional instruction:

"I did make one mistake at the beginning which I corrected but I want to call that to your attention so there won't be any question about it. I believe, it was when I first began to state to you what second degree murder was. I again repeat. . . that second degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation; and that manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation."

The corrected instruction was sufficient to remove all harmful effect of the first definition of murder in the second degree. The erroneous definition was a slip of the tongue (lapsus linguae) and amply corrected, removing any harmful effect. State v. Sanders, 280 N.C. 81, 185 S.E.2d 158.

The defendant objected to the charge on the ground he was not given the benefit of his claim of self-defense. The court gave the following final instruction on self-defense:

". . . (B)ut if you find that the deceased Bryant was the aggressor and initially made a murderous assault upon the defendant with a pistol and the defendant in defending himself from such assault struggled for the pistol during which struggle the gun fired, whether in the hand of the deceased or whether in the hand of the defendant, resulting in the wounding and death of the deceased Bryant, then the defendant would not be guilty of any offense and your verdict would be not guilty."

The jury was fully warranted in finding the defendant guilty of murder in the second degree. State v. Jennings, supra; State v. Mercer, 275 N.C. 108, 165 S.E.2d 328; State v. Redfern, 246 N.C. 293, 98 S.E.2d 322; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.

The motion in arrest of judgment was properly denied. In the trial, verdict, and sentence we find

No error.