State v. Barrett

201 S.E.2d 553, 20 N.C. App. 419, 1974 N.C. App. LEXIS 2453

• Court: Court of Appeals of North Carolina
• Decided: January 9, 1974
• Docket: 733SC796
• Status: Published

Opinion

VAUGHN, Judge.

Defendant contends that “the trial court committed prejudicial and reversible error by failing to grant defendant’s motions for . . . nonsuit.” The use of a deadly weapon in a homicide raises a presumption of malice which renders the killing at least murder in the second degree. State v. Cagle, 209 N.C. 114, 182 S.E. 697; State v. Johnson, 184 N.C. 637, 113 S.E. 617. This presumption is sufficient to enable the State to withstand a motion for nonsuit. State v. Cagle, supra; State v. Johnson, supra.

The presumption of malice is rebuttable. The thrust of defendant’s argument is that the evidence demanded a finding that, as a matter of law, defendant acted in self-defense and thus the shooting was both justified and without malice. Whether the evidence rebuts the presumption of malice in a homicide with a deadly weapon is a jury question. State v. Capps, 134 N.C. 622, 46 S.E. 730. This rule applies where a defendant claims self-defense. Before a plea of self-defense will excuse a homicide, the defendant must satisfy the jury that he used only such force as was actually necessary or apparently necessary to avoid serious bodily injury or death. The reasonableness of defendant’s action and of his belief that force was necessary presents a jury question to be resolved on the basis of the facts and circumstances surrounding the homicide. State v. Gladden, 279 N.C. 566, 184 S.E. 2d 249; State v. Kirby, 273 N.C. 306, 160 S.E. 2d 24.

We have considered defendant’s other assignments of error and find them to be without merit. We find no prejudicial error in defendant’s trial.

No error.

Judges Morris and Hedrick concur.