State v. StewartAnnotate this Case
232 S.E.2d 443 (1977)
292 N.C. 219
STATE of North Carolina v. William Weldon STEWART.
Supreme Court of North Carolina.
March 7, 1977.
*446 Rufus L. Edmisten, Atty. Gen., M. R. Rich, Jr., Deputy Atty. Gen., James E. Scarbrough, Associate Atty., Raleigh, for the State.
D. K. Stewart, Dunn, for defendant-appellant.
Defendant sought to elicit testimony that the two victims were operating an illegal liquor business and possibly a house of prostitution. Exclusion of such evidence constitutes defendant's first assignment of error.
It is generally recognized that in a prosecution for homicide where defendant pleads self-defense, evidence that the deceased was "a violent and dangerous fighting man" is admissible if such propensity was known to defendant or if the evidence in the case is wholly circumstantial. State v. Morgan, 245 N.C. 215, 95 S.E.2d 507 (1956). See also 1 Stansbury's North Carolina Evidence (Brandis rev.1973) § 106 and cases cited. Such evidence must be restricted to the character of the deceased for violent action the general bad conduct or immorality of the decedent may not be proved. State v. Hodgin, 210 N.C. 371, 186 S.E. 495 (1936). Thus in State v. Taylor, 213 N.C. 521, 196 S.E. 832 (1938), testimony relating to the "bad reputation of deceased's house `for drinking and frolicking parties'" was properly excluded.
In upholding the exclusion of testimony relating to the homosexuality of the decedent in State v. Hodgin, supra, this Court quoted with approval the following statement from Chamberlayne, Modern Law of Evidence § 3295:"That the deceased in a case of homicide was a violent, turbulent man, may, on the other hand, be shown by the accused under a plea of self-defense, but *447 not the fact that he was engaged in selling whiskey, was unchaste or that he was a drinking man where there was no evidence that he had been drinking on the occasion in question." (Emphasis added.)
Here, defendant pleads alibi, not self-defense, and the evidence proffered does not purport to show a violent and dangerous reputation. Therefore, under long-standing rules of evidence, defendant's first assignment of error is overruled.
Defendant contends the State failed to prove premeditation and deliberation and assigns as error the denial of his motions to dismiss at the close of the State's evidence and at the close of all the evidence.
Since defendant offered evidence at the trial he waived his right to urge as error on appeal the denial of his motion to dismiss interposed at the close of the State's evidence. G.S. 15-173; State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971). Nevertheless, his motion for nonsuit at the close of all the evidence draws into question the sufficiency of all of the evidence to go to the jury. G.S. 15-173. See State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969); State v. Norris, 242 N.C. 47, 86 S.E.2d 916 (1955). A motion to dismiss will be treated the same as a motion for judgment of nonsuit. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969).
Such motion requires the trial judge to consider the evidence in the light most favorable to the State and to give the State the benefit of every reasonable inference to be drawn therefrom. State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971). All evidence actually admitted, whether competent or incompetent, which is favorable to the State must be considered when ruling on the motion. State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966). If there is any evidence tending to prove the fact of guilt, or which reasonably leads to that conclusion as a logical and legitimate deduction, the motion must be denied. So, upon motion for nonsuit, the question is whether there is substantial evidence direct, circumstantial, or both to support a finding that the offense charged has been committed and that the accused committed it. State v. Smith and Foster, N.C., 231 S.E.2d 663 (1977); State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). With these rules in mind, we now consider whether the State's evidence of premeditation and deliberation was sufficient to carry the first degree murder charges to the jury.
Premeditation and deliberation may be inferred from circumstantial evidence. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969). Among the circumstances to be considered in determining whether a murder was committed with premeditation and deliberation are (1) want of provocation, (2) the conduct of the accused before and after the killing, (3) threats and declarations of the accused, (4) the use of grossly excessive force or the dealing of lethal blows after the deceased has been felled. State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Duncan, supra; State v. Walters, supra; State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961).
A review of the evidence discloses that William Clifford Stewart, 22-year-old son of defendant, had been going with Dorothy Jean Tolar Jordan for about a year. In a conversation with her on the night of the murders, she told him to leave because she was too old for him, whereupon he cut himself with a knife and fled into a nearby field. She followed him and they were met in the field by his father, the defendant. All three went back to the house of the deceased and had a long talk. His father was driving a black Thunderbird and had a .38 pistol with him at that time. He refused to go home with defendant but allowed Dorothy Jean Tolar Jordan to drive him to his mother's house about thirty minutes later. Later that night defendant tried to persuade his son to go home with him, and when the son refused defendant said: "If you don't, I am going to go down there and pump six bullets in them."
Other evidence tends to show that defendant shot Dorothy Jean Tolar Jordan four times after which, while she was still *448 alive, he doused her with gasoline and set her body on fire, causing burns over ninety percent of her body.
After the killing he left the pistol and three empty cartridges with Fred Hall and said: "I just killed old Jean Tolar . . . and there stood Thelma Whitehead . . . tow-pow right in the top of her head. . . I threw gas on them and set them afire."
We hold that premeditation and deliberation are legitimate permissible inferences to be drawn from the foregoing evidence and the first degree murder charges were properly submitted to the jury. Defendant's second assignment is overruled.
Two rulings by the trial judge relative to the admissibility of telephone conversations are the bases for defendant's third assignment of error.
Defendant first contends that the court erred in excluding a telephone conversation between Betty Lou Stewart, defendant's wife, and the deceased Dorothy Jean Tolar Jordan. In that conversation Mrs. Jordan told Mrs. Stewart that she wanted to speak to defendant to tell him that his son had cut himself and planned to kill himself. She then spoke to the defendant on the telephone and apparently repeated this statement to him. The testimony indicates that immediately thereafter defendant left his home saying, "I am going to see about my son." Taken in the most favorable light to the defendant, this testimony merely establishes a reason for the appearance of defendant near the home of the two women on the afternoon of the murders. His presence there was later established by other testimony, and, since the telephone conversation is in no way exculpatory, no prejudice resulted from its exclusion. See 1 Stansbury's North Carolina Evidence (Brandis rev.1973) § 9.
Defendant's second contention centers on the admission of testimony by defendant's son regarding a short conversation between him and Rolland Lockamy. The record reveals that the conversation in question concerned insignificant matters which were, for the most part, already in evidence. It is inconceivable that this evidence could have prejudiced defendant under the circumstances. See State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975); State v. Little, 278 N.C. 484, 180 S.E.2d 17 (1971). Defendant's third assignment has no merit and is overruled.
Defendant's fourth assignment is grounded on his contention that the court erred in failing to charge on the lesser included offense of manslaughter.
Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967). Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971); State v. Honeycutt, 250 N.C. 229, 108 S.E.2d 485 (1959); State v. Satterfield, 198 N.C. 682, 153 S.E. 155 (1930). Instructions on a lesser included offense are required only when "there is evidence from which the jury could find that such included crime of lesser degree was committed." State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954). If all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree, the court correctly refuses to charge on the unsupported lesser degree. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971), and cases cited.
Here, the State's evidence tends to show that defendant entered the house of the victims, shot Dorothy Jean Tolar Jordan four times, shot Thelma Whitehead three times, doused their bodies with gasoline and set them on fire. Defendant produced no evidence tending to rebut the State's evidence with respect to the nature of the crime. Rather, his defense was alibi and the testimony of his witnesses tended to support the alibi theory. Upon the record before us there is no evidence to support a *449 verdict of manslaughter and the court properly declined to charge the jury on such lesser included offense. State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970); State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969); State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969). Defendant's fourth assignment is overruled.
In Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (decided 2 July 1976), the United States Supreme Court invalidated the death penalty provisions of G.S. 14-17 (Cum.Supp. 1975), the statute under which defendant was indicted, convicted and sentenced to death. By authority of the provisions of Section 7, Chapter 1201 of the 1973 Session Laws (1974 Session), a sentence of life imprisonment must therefore be substituted in the Dorothy Jean Tolar Jordan case (No. 75-CR-8792).
Our examination of the entire record discloses no error affecting the validity of the verdicts returned by the jury. Defendant's conviction must therefore be upheld. To the end that a sentence of life imprisonment may be substituted in lieu of the death sentence heretofore imposed in Case No. 75-CR-8792, the case is remanded to the Superior Court of Harnett County with directions (1) that the presiding judge, without requiring the presence of defendant, enter a judgment in Case No. 75-CR-8792 imposing life imprisonment for the first degree murder of which defendant has been convicted; and (2) that in accordance with said judgment the clerk of superior court issue a commitment in substitution for the commitment heretofore issued. It is further ordered that the clerk of superior court furnish to defendant and his counsel a copy of the judgment and commitment as revised in accordance with this opinion.
In Case No. 75-CR-8792 No Error in the Verdict; Death Sentence Vacated.
In Case No. 75-CR-8793 No Error.