State v. Frankum

158 S.E.2d 62, 272 N.C. 253, 1967 N.C. LEXIS 1011

• Court: Supreme Court of North Carolina
• Decided: December 13, 1967
• Status: Published

Opinion

Pless, J.

The defendant’s own testimony as shown in the statement of facts would justify a peremptory instruction of guilt. But in addition, he “corroborated” it by repeating on cross examination that “[h]e [Miller] was standing in the front room when he turned back and said ‘You G.d. black s.o.b., why don’t you shoot me?’ And so I did. ... I got up off the bed to shoot him. . . . No, sir, wasn’t hurting a soul. ... I didn’t see no knife. ... I wasn’t scared. I just shot him because he come down there raising hell.” The lady who “keeps house” for the defendant also testified that when Miller asked Frankum why he didn’t shoot him that Frankum said, “I will” and shot him, and the defendant was not in any great fear or harm at the time.

The defendant’s' motion to dismiss has no merit as shown by the quoted portions of his own evidence. Other exceptions relating to the admission of evidence are without merit.

The defendant excepts to the Court’s charge regarding an aggressor in the home of another and an instruction about a felonious assault. The defendant has shown only that Miller was obnoxious, but unarmed and making no assault when shot. “[N]o words, however violent or insulting, justify a blow.” Goldberg v. Ins. Co., 248 N.C. 86, 102 S.E. 2d 521. Because the jury did not convict of the felonious assault, any incorrect instruction relating thereto would not constitute error. State v. McCaskill, 270 N.C. 788, 154 S.E. 2d 907.

As stated above, the defendant was guilty of an assault with a deadly weapon, at least, upon his own statement. The Court was kind enough to the defendant to give him a chance before the jury that he did not deserve. He has no valid complaint.

No error.