State v. Bunton

101 S.E.2d 454, 247 N.C. 510, 1958 N.C. LEXIS 579

• Court: Supreme Court of North Carolina
• Decided: January 10, 1958
• Docket: 583
• Status: Published

Opinion

Winborne, C. J.:

Of the twenty-nine assignments of error grouped in the case on appeal, only exceptions to which assignments of error numbered 16, 17, 18, 19, 20, 21, 22, 23, 25, 26 and 27 relate are set out in defendant appellant’s brief, or in support of which reason or argument is stated or authority cited. Hence, under Rule 28 of Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562, and decisions of this Court pursuant thereto, all other exceptions will be taken as abandoned by him.

The question then arises: Is there error in matters challenged by exceptions presented? Careful review and consideration of the record and case on appeal fails to disclose prejudicial error.

I. An inspection of the record proper, in the light of proper practice in trial of homicide cases, such as this is, discloses that orderly procedure was followed, and there is no error apparent upon the face of the record.

II. Assignments of error 21 and 25, based upon exceptions 21 and 25 to failure to charge in respect to character evidence, the defendant not having testified, or put on evidence as to his good character: Under cross-examination, witnesses put on the stand by defendant Kollock did testify to good character and reputa tion of defendant Bunton. And the court, in charging the jury, called attention to the fact that there was some character evidence introduced as to both defendants; that such evidence is substantive in that the jury would consider it as to the guilt or innocence of defendants, — as to whether a person whose character is testified to be good would commit such a crime. The charge is in substantial accord with proper instruction. S. v. McMahan, 228 N.C. 293, 45 S.E. 2d, 340.

III. Assignments of error Numbers 17, 18, 19, 20, 22, 23 and 26, are based upon exceptions of like numbers, to portions of the charge which defendant Bunton contends are erroneous in that the court restricted the jury to the return of one of three verdicts — guilty of murder in the first degree, or guilty of murder in the first degree with recommendation of life imprisonment, or not guilty — without including murder in the second degree. Defendant, appellant, contends that the evidence as to his intoxication is sufficient to require the submission of question of sec-cond degree murder, and that, hence, it was the duty of the trial court to instruct the jury as to second degree murder as one of the verdicts which the jury might return. In support of this position these cases are cited: S. v. Murphy, 157 N.C. 614, 72 S.E. 1075; S. v. Shelton, 164 N.C. 513, 79 S.E. 883, and S. v. Edwards, 211 N.C. 555, 191 S.E. 1.

In this respect, speaking to the question of intoxication in S. v. Murphy, supra, Hoke, J., later C.J., delivering the opinion of the Court, had this to say: “It is very generally understood that voluntary drunkenness is no legal excuse for crime, and the position has been held controlling in many causes in this State and on indictments for homicide * * * The principle, however, is not allowed to prevail where, in addition to the overt act, it is required that a definite specific intent be established as an essential feature of the crime. In Clark’s Criminal Law, p. 72, this limitation on the more general principle is thus succinctly stated: ‘Where a specific intent is essential to constitute crime, the fact of intoxication may negative its existence.’ Accordingly, since the statute dividing the crime of murder into two degrees and in cases where it becomes necessary, in order to convict an offender of murder in the first degree, to establish that the ‘killing was deliberate and premeditated,’ these terms contain, as an essential element of the crime of murder ‘a purpose to kill, previously formed after weighing the matter’ * * * a mental process, embodying a specific, definite intent, and if it is shown that an offender charged with such crime, is so drunk that he is utterly unable to form or entertain this essential purpose he should not be convicted of the higher offense. It is said in some of the cases, and the state ment has our unqualified approval, that the doctrine in question should be applied with great caution * * * .”

However, it is provided by statute, in this State, that a “murder * * * which shall be committed in the perpetration or attempt to perpetrate any * * * robbery * * * or other felony shall be deemed murder in the first degree * * * .” G.S. 14-17. S. v. Lane, (1914) 166 N.C. 333, 81 S.E. 620; S. v. Donnell, (1932) 202 N.C. 782, 164 S.E. 352; S. v. Glover, (1935) 208 N.C. 68, 179 S.E. 6; S. v. Exum, (1938) 213 N.C. 16, 195 S.E. 7; S. v. Alston, 215 N.C. 713, 3 S.E. 2d 11; S. v. Miller, (1941) 219 N.C. 514, 14 S.E. 2d 522; S. v. King, (1946) 226 N.C. 241, 37 S.E. 2d 684, and other cases.

To this statute, G.S. 14-17, the General Assembly of 1949, Chapter 299, S. 1, added the following: “Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State’s Prison, and the court shall so instruct the jury.” This proviso has been the subject of discussion in several cases. S. v. McMillan, 233 N.C. 630, 65 S.E. 2d 212; S. v. Marsh, 234 N.C. 101, 66 S.E. 2d 684; S. v. Simmons, 234 N.C. 290, 66 S.E. 2d 897; S.C. 236 N.C. 340, 72 S.E. 2d 743; S. v. Dockery, 238 N.C. 222, 77 S.E. 2d 664; S. v. Conner, 241 N.C. 468, 85 S.E. 2d 584; S. v. Carter, 243 N.C. 106, 89 S.E. 2d 789; S. v. Adams, 243 N.C. 290, 90 S.E. 2d 383; S. v. Cook, 245 N.C. 610, 96 S.E. 2d 842.

In the present case all the evidence shown in the record of case on appeal tends to show that the defendant, in the perpetration of a robbery, shot and killed Clifford Witt Phillips. A homicide so committed is declared by the statute, G.S. 14-17, to be murder in the first degree. S. v. Alston, supra. Thus when a homicide is committed in the perpetration of a robbery, the State is not put to the proof of premeditation and deliberation. In such event the law presumes premeditation and deliberation. S. v. King, 226 N.C. 241, 37 S.E. 2d 684. See also S. v. Maynard, ante, 462, cotemporaneous herewith, where this Court in opinion by Parker, J., restates the principle in this manner: “Where a murder is committed in the perpetration or attempt to perpetrate a robbery from the person, G.S. 14-17 pronounces it murder in the first degree, irrespective of premeditation or deliberation or malice aforethought,” citing cases.

Moreover, while evidence tends to show that the defendants were drinking, and that they were “pretty drunk”, when the witness James McCollum last saw them before the time the body of the deceased was found, there is no evidence tending to show that defendant Bunton did not know what he was doing, both in the planning and in the execution of the robbery. Indeed, the evidence is not sufficient to make available to him the defense of intoxication. Hence there is no prejudicial error in the court limiting the verdicts as above indicated.

In respect to Assignments 16 and 27 it is noted that the trial judge charged the jury as to the provision added to G.S. 14-17 by the act of 1949 Session Laws, Chapter 299, Section 1, above quoted in respect to recommendation of life imprisonment, all in substantial accordance with decisions of this Court. S. v. McMillan, supra, and other cases above cited.

After careful consideration of the record proper, the record of case on appeal, and all assignments of error, both those brought forward in brief of the appellant, and those deemed abandoned, error of prejudicial nature, sufficient to require the disturbing of the verdict, and judgment from which appeal is taken is not made to appear.

Hence the judgment is affirmed, and in the trial there is

No Error.