43 N.C. App. 467 | N.C. Ct. App. | 1979
Defendant raises twenty assignments of error in his brief; however, we are only required to discuss three in disposing of this appeal.
First, defendant contends his motions to dismiss at the close of the state’s case and at the conclusion of all the evidence should have been allowed. We do not agree. Viewing the evidence in the light most favorable to the state as we are required to do, State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967), we find plenary evidence to withstand the motions for dismissal. Defendant, looking for his stepdaughter, entered the Smart house with a loaded .38 caliber pistol in his hand. After a fight with his stepdaughter, he went into the den where Bunny had left David Rea a few minutes earlier sitting on the couch asleep. No argument or loud noise was heard from the den; then a shot was heard and defendant left the den with a smile on his face. David was found immediately, sitting on the couch, head back, shot through the cheek, and died from the wound within a few days. The gun, located in defendant’s car, had two fired shells in it. Although defendant is the only surviving eyewitness to the shooting, the evidence is sufficient to submit the case to the jury on the charge of murder in the second degree.
Next, we consider defendant’s two exceptions to the charge of the court. Defendant challenges these two portions of the court’s charge:
Now, if the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally assaulted David Rea with the weapon or intentionally inflicted upon David Rea with the deadly weapon, and that the assault was the proximate cause of David Rea’s death, you may, but need not infer, first, that the killing was unlawful and second, that it was done with malice. Malice, and if anything else appears,*473 the defendant would be guilty of second degree murder. (Emphasis added.)
So, I charge that if you find from the evidence and beyond a reasonable doubt that on or about the 25th of September, 1977, that Walter Bonds intentionally and without malice and without justification or excuse assaulted David Rea with a pistol, thereby proximately causing David Rea’s death, it would be your duty to return a verdict of guilty of second degree murder. However, if you do not so find or if you have a reasonable doubt as to one or more of those things, it would be your duty to return a verdict of — or you would not return a verdict of guilty of second degree murder. (Emphasis added.)
While it may be speculated that the record is inaccurate, we are bound by it for the purposes of appeal. State v. Williams, 280 N.C. 132, 184 S.E. 2d 875 (1971). Undoubtedly, the trial court intended to say “if nothing else appears” rather than “if anything else appears,” and at times such a misstatement might well be considered a harmless lapsus linguae. However, when this error is considered together with the error in the second quoted portion of the charge, we find the charge contains prejudicial error. It is true the court had at one point correctly stated that murder in the second degree required an unlawful killing with malice. However, here the judge was giving his final mandate to the jury on the charge of murder in the second degree and the jury could have justifiably and reasonably understood from this instruction that malice was not an essential element of the crime charged.
The principal purpose of the charge is to give the jury a clear instruction which applies the law to the evidence in such a manner as to assist the jury in correctly understanding the case and in reaching a correct verdict. Id. We hold the charge contains prejudicial error in the challenged portions, requiring a new trial.
As the case is being returned for a new trial, we turn to the question of the validity of the second judgment entered against defendant in the Superior Court of Robeson County on 9 December 1978. Defendant excepted to the entry of this judgment and argues it in his brief. We find this exception meritorious. The
The right of a defendant to be present at the time sentence is pronounced is a common law right, separate and apart from the constitutional or statutory right to be present at the trial. State v. Pope, 257 N.C. 326, 126 S.E. 2d 126 (1962). “The accused has the undeniable right to be personally present when sentence is imposed.” Id. at 334, 126 S.E. 2d at 132. In State v. Cherry, 154 N.C. 624, 627, 70 S.E. 294, 295 (1911), we find the following:
While our decisions have established that in case of waiver the presence of the accused is not necessary to a valid trial and conviction, all of the authorities here and elsewhere, so far as we have examined, are to the effect that when a sentence, either in felonies less than capital or in misdemeanors, involves and includes corporal punishment, the presence of the accused is essential. Thus, in S. v. Paylor, supra, Ashe, J., delivering the opinion, said: “But where the punishment is corporal the prisoner must be present, as was held in Rex v. Duke, Holt, 399, where the prisoner was convicted of perjury, Holt, C.J., saying: ‘Judgment can not be given against any man in his absence for corporal punishment; he must be present when it is done.’ ”
Other decisions to the same effect are State v. Brooks, 211 N.C. 702, 191 S.E. 749 (1937); State v. Stockton, 13 N.C. App. 287, 185 S.E. 2d 459 (1971). The 9 December 1978 judgment is void and the same is hereby vacated.
For errors in the charge, defendant is entitled to a new trial. The other errors assigned may not appear in a second trial; therefore, we refrain from discussing them.
