State v. Hamby
174 S.E.2d 385
N.C.
1970
Check Treatment
SHARP, J.

Defendants bring forward one assignment of error. They spe *678 cify that the only question presented by this appeal is whether the court erred in overruling their motion for judgment of nonsuit on the charge of murder in the first degree. They contend that “the State offered positive, direct and substantial evidence that the defendants were drunk before and at the time the crime was committed and therefore could not have acted with premeditation and deliberation.”

In order to convict each defendant the State was required to produce evidence which satisfied the jury beyond a reasonable doubt that he unlawfully killed Hendricks with malice and in the execution of an actual specific intent to kill, formed after premeditation and deliberation. If, at the time of the killing, either defendant was so-drunk as to be utterly incapable of forming a deliberate and premeditated intent to kill Hendricks, he could not be guilty of murder in the first degree, for an essential element of that crime would be lacking. State v. Propst, 274 N.C. 62, 161 S.E. 2d 560, and the cases cited therein. However, whether intoxication and premeditation can coexist depends upon the degree of inebriety and its effect upon the mind and passions. “No inference of the absence of deliberation and premeditation arises from intoxication, as a matter of law.” State v. Murphy, 157 N.C. 614, 619, 72 S.E. 1075, 1077. “[A] person may be excited, intoxicated and emotionally upset, and still have the capability to formulate the necessary plan, design, or intention to commit murder in the first degree.” State v. Thompson, 110 Utah 113, 123, 170 P. 2d 153, 158.

Judge Hasty fully explained the foregoing principles to the jury in a charge which defendants do not attack. The specific question for decision is whether all the State’s evidence, when considered in the light most favorable to the State, tends to show that either defendant (or both of them) was so intoxicated at the time of the killing that he was utterly incapable of forming a deliberate and premeditated purpose to kill Hendricks. If reasonable minds must agree that all the evidence points unerringly to that conclusion, the judge should have withdrawn the issue of defendants’ guilt of murder in the first degree from the jury. When the State’s evidence tends only to exonerate a defendant from a particular charge his motion for judgment of nonsuit or a directed verdict as to that charge should be allowed. State v. Carter, 254 N.C. 475, 119 S.E. 2d 461; State v. Jarrell, 233 N.C. 741, 65 S.E. 2d 304; State v. Robinson, 229 N.C. 647, 50 S.E. 2d 740; State v. Todd, 222 N.C. 346, 23 S.E. 2d 47; 2 Strong, N. C. Index 2d Criminal Law § 106 (1967). However, if there is any evidence which reasonably tends to show that defend *679 ants formed, the specific intent to kill Hendricks and that this intention was preceded by premeditation and deliberation, their motions were properly overruled. State v. Simmons, 240 N.C. 780, 83 S.E. 2d 904.

Defendants have cited no case, and our research has revealed none, in which any court has dismissed a charge of murder in the first degree on the ground that all the evidence tended to show a degree of intoxication which negated the possibility of premeditation and deliberation as a matter of law. On the contrary, when a defendant has committed an overt lethal act, the decision has been that whether his “intoxication (was) so gross as to preclude a capacity intentionally to kill is normally a fact issue for the jury to resolve.” King v. State, 80 Nev. 269, 272, 392 P. 2d 310, 311. As stated in 23A C.J.S. Criminal Law § 1131 (1961), “As a general rule, it is for the jury to determine whether the mental condition of accused was so far affected by intoxication that he was unable to form a guilty intent, unless the evidence is not sufficient to warrant the submission of the question to the jury.” See State v. Marsh, 234 N.C. 101, 66 S.E. 2d 684; State v. Hammonds, 216 N.C. 67, 3 S.E. 2d 439 for comments indicating the court's belief that the defendant’s conduct at the time of the homicide was incompatible with “his defense of drunkenness and mental irresponsibility.”

The following indicia of premeditation and deliberation are listed in State v. Faust, 254 N.C. 101, 107, 118 S.E. 2d 769, 773: Want of provocation on the part of the deceased; the conduct of defendant before and after the killing; threats and declarations of defendant before and during the course of the occurrence giving rise to the death of the deceased; the dealing of lethai blows after deceased has been felled and rendered helpless. Accord, State v. Walters, 275 N.C. 615, 170 S.E. 2d 484.

In this case there was ample evidence to establish that defendants killed Hendricks with malice after having deliberated and premeditated his murder. Judge Hasty correctly overruled the motion to dismiss the charge of murder in the first degree. Although the evidence with reference to their intoxication raises the inference that the judgment and dexterity of each were impaired, we cannot say as a matter of law that defendants were so intoxicated as to be incapable of premeditated murder. On the contrary, the evidence of premeditation and an actual, specific intent to kill fully justified the jury’s verdict: (1) Defendants went to Hendricks’ home for the specific purpose of obtaining money. (2) When he was reluctant to give them more money, each defendant, without the slightest provo *680 cation and by concerted .action, 'attacked him as he lay helpless in bed. (3) Chandler took 'from Hendricks’ pocket the money defendants had come to get, and they then looted the house. (4) Defendants forcibly removed Hendricks from his bed, dressed him, and put him in their automobile. (5) Except for the television, which they put in the trunk of the automobile, defendants wrapped the stolen articles in bedclothes taken from Hendricks’ bed. (6) In an attempt to conceal their crime, defendants attempted to burn down the house by pouring kerosene on the floors. The plan failed because Hamby’s aim was poor and his lighter fell short of the mark. (7) Defendants then proceeded with Hendricks to a deserted spot previously •known to them. (8) En route Hamby told Hendricks (a) that he would not kill him if he would get them a gun, and (b) that Hendricks should smoke his cigarette “because it would be the last one he would get.” (9) After arriving at their destination, Hamby hit Hendricks over the head with a cue stick and slit his throat. Chandler jabbed Hendricks in the head with a knife, stomped him, and tied his hands with wire obtained from the automobile. (10) Leaving the scene of their crime, defendants' decided to go to Tennessee. They aroused Jeannette so that she and Mildred might accompany .them. (11) The two defendants shared the drive to Tennessee over treacherous mountain roads and returned without mishap to Lincoln County by afternoon. (12) The next day Chandler, well aware of what he had done, confessed the crime to a friend, and told him that a pillow marked the spot where the body was.

As pointed out by Higgins, J., in State v. Miller, post, p. 681, since the murder with which defendants were charged occurred on 8 April 1969 — after the repeal of G.S. 15-162.1 on 25 March 1969 — we are not confronted with the question relating to capital punishment which was debated in State v. Spence and Williams, 274 N.C. 536, 545 et seq., 164 S.E. 2d 593, 600; State v. Atkinson, 275 N.C. 288, 315-321, 323-328, 167 S.E. 2d 241, 258-260, 262-265; State v. Hill, 276 N.C. 1, 16 et seq., 170 S.E. 2d 885, 895; State v. Ruth, 276 N.C. 36, 44 et seq., 170 S.E. 2d 897, 902; State v. Roseboro, 276 N.C. 185, 197, 171 S.E. 2d 886, 894.

In the trial below, we find

No error.