WHICHARD, Judge.
Defendant contends the court erred in admitting evidence of, and instructing the jury regarding, an argument between defendant and the victim which occurred several days prior to the homicide. This evidence was admissible to show defendant’s motive and mental intent or state, and to indicate the relationship between defendant and the victim. See State v. Cherry, 298 N.C. 86, 109, 257 S.E. 2d 551, 565 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed. 2d 796 (1980); State v. Bailey, 49 N.C. App. 377, 380-82, 271 S.E. 2d 752, 754-55 (1980), disc. rev. denied, 301 N.C. 723, 276 S.E. 2d 288 (1981); State v. Judge, 49 N.C. App. 290, 291-92, 271 S.E. 2d 89, 90 (1980). The contention is thus without merit.
[3]*3Defendant further contends the court erred in excluding testimony regarding the general character and reputation of the victim in the community and his reputation as “a violent and dangerous man.” He relies on
the general rule that where the defendant in a homicide prosecution pleads self-defense and there is evidence which tends to show that the killing was in self-defense, evidence of the character of the deceased as a violent and dangerous fighting person is admissible if such character was known to the defendant or the evidence is wholly circumstantial or the nature of the transaction is in doubt.
State v. Price, 301 N.C. 437, 450, 272 S.E. 2d 103, 112 (1980).
Defendant sought to elicit the testimony excluded here on cross-examination of a State’s witness. At that time he had introduced no evidence as to self-defense. A defendant must present viable evidence of the necessity of self-defense as a condition precedent to the admissibility of evidence regarding the general character of the deceased as a violent and dangerous fighting person. State v. Allmond, 27 N.C. App. 29, 30-31, 217 S.E. 2d 734, 736 (1975). Because no such evidence had been presented, the court did not err in sustaining the objections to the inquiries in question.
Defendant finally contends the court erred at the sentencing stage in its findings on factors in aggravation, and in finding that the factors in aggravation outweighed the factors in mitigation.
The court found, as a factor in aggravation, that the defendant was armed with or used a deadly weapon. “Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . .” G.S. 15A-1340.4(a)(1) (Cum. Supp. 1981). This Court has held use of a deadly weapon improperly considered as a factor in aggravation in second degree murder cases, on the ground that evidence thereof was essential to prove malice, which is an element of second degree murder. State v. Gaynor, 61 N.C. App. 128, 130, 300 S.E. 2d 260, 261 (1983); State v. Keaton, 61 N.C. App. 279, 300 S.E. 2d 471 (1983). We now consider whether, standing alone, use of a deadly weapon to shoot a victim, and thereby accomplish an unlawful killing, may prop[4]*4erly be considered as a factor in aggravation in manslaughter cases.
Manslaughter “is defined as the unlawful killing of a human being without malice, express or implied, without premeditation and deliberation, and without the intention to kill or to inflict serious bodily injury.” State v. Roseboro, 276 N.C. 185, 194, 171 S.E. 2d 886, 892 (1970), death sentence reversed, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2289 (1971). To convict of manslaughter, then, the State must prove an unlawful killing.
The unlawful killing proven here was accomplished by shooting the victim with a gun, a deadly weapon. Evidence of use of the deadly weapon to shoot the victim was thus necessary to prove the unlawful killing, which was the essence of the offense.
The General Assembly has prescribed, for consideration as a factor in aggravation, that “[t]he defendant was armed with or used a deadly weapon at the time of the crime.” G.S. 15A-1340.4(a)(l)(i) (Cum. Supp. 1981). We do not believe, however, that it intended this factor to be used to enhance sentences in cases where the offense itself is an unlawful killing accomplished by shooting the victim with a deadly weapon. If the deadly weapon was used in a manner which rendered “[t]he offense . . . especially heinous, atrocious, or cruel,” that may properly be considered as a factor in aggravation. G.S. 15A-1340.4(a)(1)(f) (Cum. Supp. 1981). Standing alone, however, we hold that defendant’s use of a deadly weapon to shoot his victim, and thereby accomplish the unlawful killing which constitutes the offense of manslaughter, cannot properly be considered as a factor in aggravation.
The court found, as a further factor in aggravation, that the deadly weapon with which defendant was armed was concealed upon his person. While it is somewhat incongruous to disallow, as a factor in aggravation, actual use of the weapon, while allowing its mere concealment, for reasons set forth below we hold that the court could properly consider it.
Concealment of the weapon may well have been a factor in the occurrence of the crime. The homicide here emanated from a game of cards involving defendant and the victim. Had the weapon been visible, the victim might well have altered his behavior toward defendant during the game, or have taken other [5]*5precautions which would have prevented the shooting. Evidence that defendant carried a concealed weapon was evidence that he committed a separate criminal offense, G.S. 14-269, without which the offense here might have been averted. We thus hold that this factor was properly considered.
The court finally found, as a factor in aggravation, that the defendant had a prior conviction or convictions for criminal offenses punishable by more than sixty days’ confinement. G.S. 15A-1340.4(e) (Cum. Supp. 1981), in pertinent part, provides:
No prior conviction which occurred while the defendant was indigent may be considered in sentencing unless the defendant was represented by counsel or waived counsel with respect to that prior conviction.
This Court has indicated that the burden should be on the State to prove that, at the time of prior convictions, the defendant either was not indigent, was represented by counsel, or waived counsel; and that the Court cannot find these matters by a preponderance of the evidence when the record contains no evidence with regard thereto. State v. Thompson, — N.C. App. —, 300 S.E. 2d 29, 33 (1983). See also State v. Farmer, — N.C. App. —, 299 S.E. 2d 842 (1983). See State v. Massey, 59 N.C. App. 704, 705, 298 S.E. 2d 63, 65 (1982), which indicates the contrary, however.
The record here contains no evidence regarding whether defendant was not indigent, was represented by counsel, or waived counsel at the time of his prior convictions. The court thus could not have found these matters by a preponderance of the evidence, and the prior convictions were therefore improperly considered as factors in aggravation. State v. Thompson, supra.1
[6]*6We find no error in the trial. For the reasons stated, the sentence is vacated and the case is remanded for resentencing. See State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).
No error; sentence vacated, remanded for resentencing.
Judge WEBB concurs.
Judge Braswell dissents. Free access — add to your briefcase to read the full text and ask questions with AI
WHICHARD, Judge.
Defendant contends the court erred in admitting evidence of, and instructing the jury regarding, an argument between defendant and the victim which occurred several days prior to the homicide. This evidence was admissible to show defendant’s motive and mental intent or state, and to indicate the relationship between defendant and the victim. See State v. Cherry, 298 N.C. 86, 109, 257 S.E. 2d 551, 565 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed. 2d 796 (1980); State v. Bailey, 49 N.C. App. 377, 380-82, 271 S.E. 2d 752, 754-55 (1980), disc. rev. denied, 301 N.C. 723, 276 S.E. 2d 288 (1981); State v. Judge, 49 N.C. App. 290, 291-92, 271 S.E. 2d 89, 90 (1980). The contention is thus without merit.
[3]*3Defendant further contends the court erred in excluding testimony regarding the general character and reputation of the victim in the community and his reputation as “a violent and dangerous man.” He relies on
the general rule that where the defendant in a homicide prosecution pleads self-defense and there is evidence which tends to show that the killing was in self-defense, evidence of the character of the deceased as a violent and dangerous fighting person is admissible if such character was known to the defendant or the evidence is wholly circumstantial or the nature of the transaction is in doubt.
State v. Price, 301 N.C. 437, 450, 272 S.E. 2d 103, 112 (1980).
Defendant sought to elicit the testimony excluded here on cross-examination of a State’s witness. At that time he had introduced no evidence as to self-defense. A defendant must present viable evidence of the necessity of self-defense as a condition precedent to the admissibility of evidence regarding the general character of the deceased as a violent and dangerous fighting person. State v. Allmond, 27 N.C. App. 29, 30-31, 217 S.E. 2d 734, 736 (1975). Because no such evidence had been presented, the court did not err in sustaining the objections to the inquiries in question.
Defendant finally contends the court erred at the sentencing stage in its findings on factors in aggravation, and in finding that the factors in aggravation outweighed the factors in mitigation.
The court found, as a factor in aggravation, that the defendant was armed with or used a deadly weapon. “Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . .” G.S. 15A-1340.4(a)(1) (Cum. Supp. 1981). This Court has held use of a deadly weapon improperly considered as a factor in aggravation in second degree murder cases, on the ground that evidence thereof was essential to prove malice, which is an element of second degree murder. State v. Gaynor, 61 N.C. App. 128, 130, 300 S.E. 2d 260, 261 (1983); State v. Keaton, 61 N.C. App. 279, 300 S.E. 2d 471 (1983). We now consider whether, standing alone, use of a deadly weapon to shoot a victim, and thereby accomplish an unlawful killing, may prop[4]*4erly be considered as a factor in aggravation in manslaughter cases.
Manslaughter “is defined as the unlawful killing of a human being without malice, express or implied, without premeditation and deliberation, and without the intention to kill or to inflict serious bodily injury.” State v. Roseboro, 276 N.C. 185, 194, 171 S.E. 2d 886, 892 (1970), death sentence reversed, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2289 (1971). To convict of manslaughter, then, the State must prove an unlawful killing.
The unlawful killing proven here was accomplished by shooting the victim with a gun, a deadly weapon. Evidence of use of the deadly weapon to shoot the victim was thus necessary to prove the unlawful killing, which was the essence of the offense.
The General Assembly has prescribed, for consideration as a factor in aggravation, that “[t]he defendant was armed with or used a deadly weapon at the time of the crime.” G.S. 15A-1340.4(a)(l)(i) (Cum. Supp. 1981). We do not believe, however, that it intended this factor to be used to enhance sentences in cases where the offense itself is an unlawful killing accomplished by shooting the victim with a deadly weapon. If the deadly weapon was used in a manner which rendered “[t]he offense . . . especially heinous, atrocious, or cruel,” that may properly be considered as a factor in aggravation. G.S. 15A-1340.4(a)(1)(f) (Cum. Supp. 1981). Standing alone, however, we hold that defendant’s use of a deadly weapon to shoot his victim, and thereby accomplish the unlawful killing which constitutes the offense of manslaughter, cannot properly be considered as a factor in aggravation.
The court found, as a further factor in aggravation, that the deadly weapon with which defendant was armed was concealed upon his person. While it is somewhat incongruous to disallow, as a factor in aggravation, actual use of the weapon, while allowing its mere concealment, for reasons set forth below we hold that the court could properly consider it.
Concealment of the weapon may well have been a factor in the occurrence of the crime. The homicide here emanated from a game of cards involving defendant and the victim. Had the weapon been visible, the victim might well have altered his behavior toward defendant during the game, or have taken other [5]*5precautions which would have prevented the shooting. Evidence that defendant carried a concealed weapon was evidence that he committed a separate criminal offense, G.S. 14-269, without which the offense here might have been averted. We thus hold that this factor was properly considered.
The court finally found, as a factor in aggravation, that the defendant had a prior conviction or convictions for criminal offenses punishable by more than sixty days’ confinement. G.S. 15A-1340.4(e) (Cum. Supp. 1981), in pertinent part, provides:
No prior conviction which occurred while the defendant was indigent may be considered in sentencing unless the defendant was represented by counsel or waived counsel with respect to that prior conviction.
This Court has indicated that the burden should be on the State to prove that, at the time of prior convictions, the defendant either was not indigent, was represented by counsel, or waived counsel; and that the Court cannot find these matters by a preponderance of the evidence when the record contains no evidence with regard thereto. State v. Thompson, — N.C. App. —, 300 S.E. 2d 29, 33 (1983). See also State v. Farmer, — N.C. App. —, 299 S.E. 2d 842 (1983). See State v. Massey, 59 N.C. App. 704, 705, 298 S.E. 2d 63, 65 (1982), which indicates the contrary, however.
The record here contains no evidence regarding whether defendant was not indigent, was represented by counsel, or waived counsel at the time of his prior convictions. The court thus could not have found these matters by a preponderance of the evidence, and the prior convictions were therefore improperly considered as factors in aggravation. State v. Thompson, supra.1
[6]*6We find no error in the trial. For the reasons stated, the sentence is vacated and the case is remanded for resentencing. See State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).
No error; sentence vacated, remanded for resentencing.
Judge WEBB concurs.
Judge Braswell dissents.
Judge Webb concurring.
In light of the footnote to the majority opinion and the dissenting opinion, I file this opinion concurring with the result reached by the majority as to the aggravating factor of prior convictions.
I believe State v. Thompson, 60 N.C. App. 679, 300 S.E. 2d 29 (1983) and State v. Farmer, 60 N.C. App. 779, 299 S.E. 2d 842 (1983) were decided correctly. G.S. 15A-1340.4(a)(l)o provides that [7]*7if there is proof by a preponderance of the evidence that a defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days’ confinement, this may be considered as an aggravating factor for the imposition of a sentence in excess of the presumptive sentence. G.S. 15A-1340.4(e) provides that a prior conviction which occurred while a defendant was indigent may not be considered unless the defendant was represented by counsel or waived counsel with respect to that prior conviction.
G.S. 15A-1340.4 does not say who has the burden of proving non-indigency, counsel, or waiver of counsel which this section makes an element of the aggravating factor of a prior conviction. We have under our common law and constitutional system required that the State prove the elements of a crime in order to convict a defendant. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 2d 508 (1975). In light of this tradition, I do not believe we should require a defendant to prove the lack of an element in the aggravating factor of a prior conviction. The imposition of a sentence which may be many years in prison in excess of the presumptive sentence is not a trivial matter. I believe the State should be required to prove the elements of an aggravating factor which may trigger extra years in prison.
I do not, as the majority opinion apparently does, agree with the reasoning of the minority. It is not a question of the suppression of evidence of a prior conviction. The evidence of the prior conviction was admitted. This is not enough to support the aggravating factor of a prior conviction, however. This aggravating factor also requires evidence that the defendant either was not indigent or that he was represented by counsel or had waived counsel. There was no such evidence in this case.
I do not believe the admission of a confession at a trial without objection is in any way comparable to the issue which we face. If the defendant does not object to the admission of a confession, he cannot complain about it on appeal. In this case the required evidence was not introduced at all. The “silent record” point does not reward the lazy lawyer any more than a lawyer is ever rewarded when the party with the burden of proof does not present evidence sufficient to meet this burden. I do not believe we have put any affirmative duty on the judge to ask the defend[8]*8ant or anyone else whether he is “unconditionally positive” the defendant was not indigent. The judge should determine the issue on the evidence presented. To say, as does the dissent, that “[t]he record is ‘silent’ only because the defendant voluntarily chose for it to be ‘silent’ ” begs the question. The defendant did not object to any evidence as to his indigency or waiver of counsel because no such evidence was offered. I do not, as the dissent seems to think, believe there is a “constitutional error” involved. We are concerned with the interpretation of a statute. The statute says the court may not find a prior conviction as an aggravating factor if the defendant was indigent at the time of the conviction unless he was represented by counsel or had waived counsel. The statute does not say who must prove non-indigency, representation by counsel, or the waiver of counsel. Under our tradition of requiring the State to prove what is necessary to send a person to prison, I do not think we should, in this case, require the defendant to prove a negative in an aggravating factor in order not to serve additional years in prison.