*1 COURT THE SUPREME IN v. Hankerson may present jeopardy upon Otherwise, plea retrial of double problems. serious respectfully stated, from the ma-
For the I dissent reasons jority opinion of the Court and vote to affirm the decision Appeals. Copeland join in dissent. this
Justices and Exum HANKERSON OF CAROLINA v. JOHNNIE B. STATE NORTH 56No. (Filed 1975) 17 December by exculpatory introduction statements 90— State’s § 1. Criminal Law defendant exculpatory portions by of a confession The not bound State is evidence tend- homicide ease there is other in a which it introduces ing light the homicide. the circumstances of on to throw a different statements — n — exculpatory murder 21— second § 2. Homicide sufficiency for of evidence prosecu- in for The evidence was sufficient State’s notwithstanding degree murder, the State introduced tion second exculpatory the victim while shot defendant statements reaching a knife defend- defendant’s car with into the victim was chest, cast his where the State’s evidence throat and a hand on ant’s doubt (1) by tending to show that defendant defendant’s version on originally great speed; (2) lied at a rate of fled the scene shooting gun told the truth about it after used and about grease police; (S) on his had no deceased his wife turned it in grease spot although on defendant claimed a shirt hands from being victim; (4) grabbed was found with victim although cigarette hand defendant contended the victim used in one right him; against (5) victim was handed defend- hands two hand; (6) knife with his left the victim wielded the ant claimed stopped persons evi- he was two while the State’s defendant said dence alone; the victim was the victim had never a knife to one from defendant’s ve- seen similar recovered been hicle. — prior question good 86— misconduct 3. faith § Criminal Law attorney’s question to failed to show that the district Defendant many people he had as to how shot before him was asked in bad cross-examination faith. — testimony 162— absence motion 4. failure strike § Criminal Law strike failing defendant’s testi- did not err to strike trial court mony regarding prior not result in conviction where arrests did testimony. such there was motion strike no FALL TERM 1975 *2 — — recapitulation of evidence misstatement 113— Law § 5. Criminal matter collateral during recapitulation of inaccurate statement The trial court’s testified he had homicide case that defendant been in a the evidence matter a collateral and assault was a misstatement of convicted request ground for correction was new trial since no for a not a made before jury. submitted to the the case was — — acquittal by absence of self-defense 28—final mandate Homicide § 6. instructions additional failing prosecution, court’s error the trial In this homicide theory acquittal mandate the of reason of final to include in its given by by additional instructions the court was cured self-defense begun jury had its deliberations. after — — 14, 24— absence of malice self-defense burden of Homicide §§ 7. — — unconstitutionality nonretroactivity proof on defendant Mullaney Wilbur, (1976), decision of U.S. 684 Under prohibits of the Fourteenth Amendment Due Process Clause the use of the long-standing that, in rules in homicide cases order to rebut our malice, prove presumption defendant to the must satisfaction passion, he killed in the heat a sudden and in order unlawfulness, presumption of defendant must to rebut the satisfaction However, killed in self-defense. applies only Mullaney not retroactive and decision is con- trials on after 9 June 1975. ducted — presumption 14, 24— malice and unlawfulness Homicide con- §§ 8. stitutionality preclude presumptions use of decision does upon proof beyond malice and unlawfulness a reasonable doubt of of a deadly weapon; use the intentional of a nor does it making presumptions mandatory prohibit trary absence con- logical permitting proved inferences from facts evidence weighed against contrary produced. evidence to remain and concurring result. Justice Lake
Appeal pursuant 7A-30(2) to N. Gen. defendant C. Stat. Appeals reported in 26 the decision of the Court to review 575, (1975), error, App. 2d 9 which found no 217 S.E. N.C. Arnold, J., dissenting, Webb, /., in the trial at the No- before County Superior 21, of Nash 1974 Session Court. vember July 31, 1975, appeal filed in on this Court After the August 1975, 19, the record on moved to amend assignments exceptions of error which would note additional and Mullaney v. suggested by questions additional raise for review motion was Wilbur, 421 decided on June 1975. This U.S. argued' Septémber September 2, and the case allowed on 10, 1975. IN THE SUPREME COURT charged Defendant second murder of guilty.
Gregory plea stipu- of not It was Ashe entered Scarborough, performed post- that had Dr. D. E. who lated mortem present examination, trial he would been have Gregory September 29, 1974, Ashe died on as a testified result hemorrhage resulting gunshot of massive from a wound to the heart. night for the tended to that on
Evidence show Whitley, 29, 1974, Dancy, September Lorenzo Wilbert Gregory deceased, Ashe, left and drove a dance hall driving Upon car. arrival poolroom in Ashe was Whitakers. *3 they Ashe poolroom, discovered that it was closed. was at Dancy Whitley Ashe to restart car. asked and then his cigarette. unable light Whitley match. match a Neither had a for a going away, home, that he to his one block and was announced walking away walking. Dancy began Ashe were and also from going Ashe that he was back to “crank” the when said the car going Whitley. Dancy Dancy that he was indicated on with car. yelled Whitley proceeded then that he wait and testified to walk Whitley. by Dancy, last seen alive after When Ashe walking his alone back towards car. seen was Whitley gun Dancy later heard a and each fire. Moments he Dancy Ashe was and hollered this heard exclaim shot Whitley. Plymouth yellow A and “Satel- black information lite” was away pulling speed. at a rate of It observed fast did nearby stop reached the intersection of U. S. 301. when Whitley differing Dancy of whether the had accounts car Dancy after hollered. left before shooting some after 11:00 had occurred time o’clock.
The it was difficult to find Ashe. Around of the darkness Because 12:00 lying o’clock, face down in a Ashe was discovered field been thirty cigarette, A had feet from the road. which about body out, was now was Ashe’s hand. lit but removed morning. 4:00 5:00 o’clock that identity determining Plym- of the the owner After officers, including Deputy outh, law enforcement Sheriff several home, to defendant’s advised Reams went defendant of M. M. his questioned Deputy rights, him. Defendant told Reams Whitakers, person had had who had he been shot that grabbed throat him and tried to cut his but did not know whether him. testified that hit Reams defendant’s car he had FALL TERM 1975 and a knife was found middle with his consent searched of the “.30-06,” ammuni- found in the car was a seat. Also front hunting “.30-06,” knife. Blood was observed and a tion for car, just the door. Defendant side behind on gave driver’s grease spot and stated that was where Reams a shirt with grabbed. pistol asked about the used in the he had been When shooting “.30-06”), (not told Reams he was buying” already process of it but had returned it to the “in the identify. seller, he refused whom gave this additional account Reams On cross-examination driving Plymouth Defendant was statements: of defendant’s poolroom stopped near the when a man automobile “Satellite” gave light. him for a Defendant the man the and asked
him lighter cigarette from the dash his automobile. Defendant shaking right “shaking car, door that was felt someone cigarette lighter put the back in the Defendant holder locked.” reaching man” was turned around “the and when had a De- throat and hand defendant’s chest. knife at his got down, revolver, and “shot the man reached who fendant his left chest.” already his hand on had taking that after also testified defendant’s Reams Officer morgue and examined the to the de- he returned
statement *4 grease found no on them. Several witnesses hands. He ceased’s they had seen the never deceased testified the State for in evidence found in defendant’s car. the one knife like awith following giving account of the testified Defendant Plymouth slowly driving automobile over was his He incident: light. containing large for a someone asked holes when a road mirror, two men. One Through defendant could see car his to the the defendant reached over up the car and to them walked gave cigarette lighter, car, pushed dash lighter returning holder, its defendant lighter him. On man stand- move, noticed the second and looked and felt the car his right-hand As he turned back to ing side of car. car, the left his seized him reached into left, first man right put to defendant’s hand and a knife with his shoulder throat, felt the knife at his left hand. Defendant his throat with drop- assailant gun He surmised his grabbed and shot. belong defendant. to the since it did not ped in the car his knife THE IN SUPREME COURT police about the where- that he lied to the Defendant admitted gun. He said: abouts my time the law came pistol house at the
“The pistol I I for told him had did ask me then. there. He got person I I had not returned it it from. returned right then. It was in the house it. [*] [*] [*] [*] I tell the the truth about where “The reason didn’t Sheriff just think- at that time I wasn’t pistol was was because got might up jail I I here in I decided as ing, after but already given My go had and tell them. wife ahead well It is true that I never told officers at time. to the they pistol was. If had wanted to search them where right they could have found it there under house gun. just keep it I not hide the That was did mattress. away children.” from the got pistol wife, however, testified she
Defendant’s put “I where am sure he it.” drawer defendant’s from Gregory introduced evidence that the State In rebuttal right-handed. Ashe degree murder. of second found defendant years than 20 nor more than 25 less sentenced He was . Appeals error, Arnold, found no The Court of
imprisonment. dissenting. J., Attorney Edmdsten, General, Har- Claude W. L. Rufus Attorney General, the State.
ris, Assistant for Braswell, Diedrick, Rosser and Roland Attor- W. 0. L. G. appellant. neys
EXUM, Justice.
I assigns error denial of his motions for Defendant Judge dissent was on the judgment nonsuit. Arnold’s as of *5 Reviewing should have been allowed. this that nonsuit basis- actually admitted, assignment, of the evidence we consider all light defendant, most favorable the from State whether any discrepancies State, contradictions and therein resolve to the give favor, the the benefit of all rea- State in sonable State’s Cutler, from the evidence. State v. 271 N.C. inferences 637 FALL TERM 1975 v.
State (1967). specifi- 379, 382, cally urges 679, Defendant more 156 2d 681 S.E. that, comes within the rule that this case “[w]hen exculpatory of the introduces evidence statements State not false defendant which are any contradicted shown evidence, other facts or circumstances State is bound killing the intentional of another these statements. While killing deadly weapon presumption raises the that with a malice, and done with rule of law was unlawful mean that this does not not showing burden of an unlawful does evidence and rest with the State. When State’s only exculpate are to the same effect and tend defendant defendant, Carter, motion for nonsuit should be allowed. State v. 475, Johnson, 2d 461.” v. 254 N.C. 727, 730, 119 S.E. State N.C. 84, (1964). 2d
136 S.E. supra, Johnson, prosecution, murder
In State v. only that defendant committed a homicide was evidence State’s a confession that established a perfect self-defense. Circum corroborated the confession. stantial evidence dence at trial was to the same effect. Defendant’s evi context we held to a nonsuit and reversed a conviction defendant entitled manslaughter. Carter, supra, presented basically situation. There was no evidence which tended to same contra impeach testimony confession or dict or defendant’s trial lawfully in the defense of that she acted another.
falls more [1] The State squarely within the rule contends, however, and we agree State is this case bound exculpatory portions introduces, of a confession which tending light to throw a different if there is “other evidence Bright, the homicide.” the circumstances of 237 N.C. (1953) ; Bolin, 475, 477, 2d 408 235 see also State v. 75 S.E. (1972) Cooper, 189 S.E. 2d and State N.C. (1968). Bright, supra, 2d 305 In State v. N.C. 159 S.E. introduced defendant’s statement killed they scuffling accidentally on the bed. while were We wife held, however, powder that evidence “such as absence burns, wound, fatal and direction of the the location [and] .” was a mo of the defendant . . sufficient to survive conduct manslaughter nonsuit, and we affirmed a conviction. tion for [2] We hold that nonsuit in this case was properly denied in casts doubt on defendant’s version of evidence which view effect defendant evidence is to the that: the incident. This originally great speed; (2) rate of fled the scene at a *6 THE IN SUPREME COURT State v. Hankerson gun lied about the decided to tell truth about it after police; (3) his wife had turned it in to the the deceased had no grease although grease on his hands spot defendant claimed the being grabbed by deceased; on his shirt was from (4) cigarette although found hand, deceased was with a in one de- against fendant claims the the deceased was him; (5) deceased used two hands right-handed although defendant claims that hand; deceased wielded says knife with his left stopped persons he was two while the State’s evidence deceased, was shooting, when last seen alive moments before the alone; (7) the deceased had never been seen with possession a knife in his similar to the one recovered from de- fendant’s vehicle. none of individually
While these flatly circumstances taken statement, together contradicts they defendant’s taken are suf- light ficient homicide” different on the “throw; circumstances impeach and to the defendant’s version of the inci- bound, therefore, dent. The State is exculpatory por- of defendant’s tions statement. The jury. case is for the
II On cross-examination of the defendant the district attor- ney following occurred: “Q. many people you How have ever shot before?
Objection: Exception Overruled:
Dependant’s Exception No. 3. Q. exactly many? Go ahead and tell us how IA. have shot one.
Q. Is that all?
A. Two.
Q. Is that all?
A. Yes.” As the objection cross-examination continued without further having defendant admitted whiskey” been “convicted of escaping “convicted one prison. time of from ... I have not anything been convicted of I up else. have been once before assault; North Carolina for this is the second time. That was FALL TERM 1975 y. Hankerson that.” On shooting. clear of I came It was in self-defense. *7 “I have not been defendant testified: recross-examination the They jail kept three me in previously of assault. convicted hitting a stick. Years nights with time the man was me four the he was shot whacked me with a knife and a fellow back hospital go just paid bill.” leg jail his I for it. I but didn’t judge, testimony trial Apparently reference to this summarizing the defend- evidence, that stated to escape and convicted ant that he had once been “testified things you assault, will recall once he was convicted of for.” he said he had been convicted overruling of assigns first, Defendant now as error: many attorney’s question, “How objection
his to the district before?”; second, the court you failure of people ever shot have testimony any prior that arrests to strike “defendant’s conviction”; third, statement of did not result testimony of judge recapitulating the set out trial hereinabove the defendant.
properly fendant as to [3] With concedes regard to the district specific acts of right of the State misconduct, attorney’s question defendant to cross-examine State v. Gainey, 280 de properly concedes (1972), and 366, 2d 874 185 S.E. N.C. unlawfully De shooting misconduct. people would such other patently asked however, question contends, that the fendant attorney aware been must have the district faith since bad Defendant, charge. acquitted defendant was people other occa had on two however, he shot testified that acquittal only reason of resulted in one of which sions an. showing that the district in the record There is no self-defense. attorney these assaults. official outcome in fact knew the of. them, never to trial. came Apparently one tions, mony regarding' prior [4] As to suffice it to the trial say judge’s there was no arrests which failure to strike defendant’s motion to strike did not result any in convic of this testi trial with testimony. was satisfied at Apparently defendant of the two of the outcome explanation before full sponte, judge required, shooting sua The trial incidents. 513, testimony. Battle, 148 S.E. 267 N.C. to strike (1966). 2d 599
one of his [5] Although victims, he said also admitted that he “didn’t he paid hospital go bills jail for 640 THE IN SUPREME COURT previously it” and that he had “not been convicted of assault.” judge did, seems, inaccurately recapitulate The trial testimony point. defendant’s on this The misstatement is under- standable. Nevertheless “inaccurate acter are not statements this char- ground for a new trial unless called to the court’s request attention with that correction be made before the case jury.” Revis, 53, is submitted S.E. State v. N.C. (1960). 2d Cantrell, In 230 N.C. 2d 887 relied on point, S.E. defendant on this de- charge carnally knowing fendant was tried on a his ten year old child. dictum this Court volunteered the observation judge it would have been error for the say, trial in re- capitulating evidence, that defendant “admitted ... been tried and had mit convicted of an assault with intent to com- rape daughter on his Dorline Shelton” unless ad- *8 such an appeared (It in appear mission the record. does not opinion but the record reveals that Dorline Shelton was not the prosecutrix, daughter Noting but another defendant.) of the exception assignment that no to this taken was of error directed portion charge, recognized of the this Court may although indeed have made such an admission appeared Assuming none in the record. the correctness of this dictum, supposed clearly misstatement there considered is distinguishable from the prosecutions one here. In for various activity, kinds of illicit sexual our decisions have been char- being “markedly acterized holding as liberal in evidence of similar sex Stansbury’s question offenses admissible” guilt. on the 1 (Brandis North Carolina Evidence 1973). 299 Rev. might It Cantrell then be considered that the assumed misstatement in bearing one directly of a fact guilt. on defendant’s This Court has said that “a statement of a material fact not in shown the evidence constitutes error” reversible whether or not called to the trial court’s attention. State McCoy, 236 N.C. 121, 124, 921, (1952). 71 S.E. 2d 923 The misstatement here complained clearly upon of was a collateral matter. assignments
These are, error consequently, overruled.
111 [6] specify his final mandate the trial self-defense was possible judge theory failed to reiterate acquittal. Defendant contends that under Dooley, 285 N.C. 203 S.E. 2d 815 this is reversible error. After the deliberating had been approximately forty-five minutes, how- FALL TERM 1975
State v. Hankerson ever, they returned to the courtroom to ask for clarification on manslaughter the distinction between and murder in the second degree. In the course of his responsive instructions to this in- charged quiry judge the trial in addition as follows: “Also, I you charge want to gave you instruct I as to apply equally self-defense manslaughter would it would to second murder you find the justified defendant was excused because he acting you in self-defense then would find him not guilty as to either one.” Dooley require judge While does trial include his final theory acquittal by mandate the it has cured, reason of self-defense where evidence, been raised failure here to do so was opinion, in our the additional instructions. State v. Brooks, (1945). N.C. 2d S.E. Certainly the any additional instructions render error omission in the beyond final mandate harmless a reasonable doubt. IV 9, 1975, Supreme On June the United States Court de- Mullaney Wilbur, cided 421 U.S. which held that a requiring being Maine instruction a defendant tried preponderance evidence, murder in order manslaughter, murder to reduce the that he acted in the heat passion provocation, sudden violated the Due Process Fourteenth Amendment Clause the United States *9 Constitution, interpreted as that clause in Winship, was In re (1970) require prosecution prove to the 397 U.S. to be- yond every necessary a reasonable doubt fact to constitute a subsequently re-explained California, crime. It was in Faretta right n. 15 that the the U.S. of defendant to though placed State, literally have this burden the not ex- any provision pressed particular Constitution, in was process adversary law process. to due of a fair essential in Defendant that under the rationale contends of judge’s the trial instructions the violate to in this case judge Fourteenth defining Due Amendment Process. While trial manslaughter degree and in his second murder jury placed upon final mandate to the the State burden beyond prove a reasonable malice and unlawful- to doubt both COURT THE SUPREME IN v. Hankerson excuse, justification he instructed ness, i.e., or also without part, follows: jury, pertinent as or proves beyond, a doubt it reasonable “If Gregory intentionally killed that admitted defendant intentionally a deadly weapon, or
Ashe wound proximately inflicted deadly Gregory weapon, that Ashe with a presump- death, raises two caused his law killing unlawful, second, that tions; first, that the with malice. nothing appearing, Then, else it was done degree guilty . . would second murder. . be of defendant you the defendant you, have to either find I told will “As manslaughter degree not or murder of second guilty. second order to reduce the crime from prove not be- manslaughter, must to murder defendant simply your yond doubt but to a reasonable satisfaction part. And order to excuse no malice on his there was that his act altogether grounds self-defense, the de- on the of beyond but a reasonable doubt must fendant simply your he that acted in satisfaction self-defense. charge you just in negate moment. I on self-defense And will But thereby charge you that malice and I want do manslaughter, the crime to reduce defendant you Gregory satisfy things: first, three he shot must that thing passion. . The he in the heat . . second Ashe satisfy you passion provoked of is that must regards Gregory adequate Ashe which the law acts thirdly, shooting place provocation. And . . . took provocation passion person so soon after the average disposition mind and would not have cooled. grounds entirely “To excuse on the of self-de- things: satisfy you . . the must . four fense first, defendant it appeared to the defendant and believed Gregory necessary him- to shoot Ashe in order to save great bodily death harm. . . . The second self from thing you must be of—excuse me—that satisfied you satisfy this, that defendant must as of is the circumstances
they appeared to him at the time were sufficient person ordinary belief in the mind of a create such thing . . And the third must firmness. satisfy you . *10 aggressor. that he was not . And of is . . thing satisfy you the defendant must the fourth of is . not force. . that he did use excessive . FALL TERM 1975 you properly
“If find that the defendant acted in self-de- fense, guilty. However, he would if the defendant though acting otherwise in self-defense used force, excessive voluntary manslaughter.” the defendant would be of (Emphases supplied.)
the use fendant Due [7] We Process Clause in hold that our order to rebut long-standing by reason of the Fourteenth rules presumption in homicide decision Amendment of malice must in cases that Mullaney prohibits prove de jury to the satisfaction that he killed in the heat of a passion presumption sudden and to rebut unlawfulness, given in killed self-defense. The instructions here insofar they placed as these burdens on the defendant violate process concept of due announced for the first time in Mul laney. decline, however, We for reasons stated, hereinafter give Mullaney retroactive effect in North Carolina. holdWe judge because the trial instructed the in accordance with stood, law of it our homicide as and in conducted, a trial before Mullaney decision, the defendant is not entitled to the bene Mullaney will, however, apply fit of the doctrine. We the de to all trials conducted or after cision June 1975. precise presented The law Maine and issue it
succinctly by Supreme Mullaney: stated Court in justification excuse, “Absent all intentional or crimi- nally killings reckless are homicides. Felonious felonious by punished i.e., imprison- homicide murder — life proves preponderance ment —unless the defendant fair it passion the evidence that was in committed the heat of on sudden provocation, punished which case as man- slaughter i.e., by $1,000 a fine not to exceed im- — years. prisonment not to exceed 20 The issue is whether requiring rule Maine the defendant that he passion provocation in the heat of on sudden acted accords process.” (Emphasis due sup- U.S. 691-92. plied.) judge’s portion
A of the trial instructions to the in Maine were summarized as follows: prosecution established that the homicide “[T]hat unlawful, aforethought intentional both malice implied conclusively proved was to be unless the preponderance the evidence that he acted fair *11 THE SUPREME COURT IN provocation. 'passion sudden The court em- heat on of aforethought passion on and heat phasized ‘malice of things.’ [Appendix provocation inconsistent to are sudden 62; thus, proving latter the defend- the Record] negate homicide from former and reduce the would ant manslaughter. The concluded court then its murder passion’ and charge definitions of ‘heat of elaborate ” (Emphases supplied.) at 686-87. provocation.’ Id. ‘sudden proof implication which arose from of malice conclusive Maine’s simply meant and intentional an unlawful of things guilty murder unless the defendant was of these proof of preponderance proved a fair evidence provocation passion sudden where heat of on that he acted passion law under was raised. Thus Maine’s heat the issue these circumstances proving relieved the of the burden of passion. of heat of In the absence this the malice both wanting. process was that due It said: found Supreme Court pre- requires a defendant establish “Maine law he acted in the heat of ponderance of the evidence that in order to reduce murder passion provocation on sudden manslaughter. a defendant Under this burden given life when the evidence indicates be sentence can significantly likely he deserves it is as society is an result in a This intolerable sentence. lesser Harlan, where, paraphrase Mr. Justice it is far worse only manslaughter as a one murderer to sentence a murderer lesser crime of man- to sentence than (concurring slaughter. Winship, at 372 In re 397 U.S. hold that the Due opinion). therefore Process Clause We beyond prosecution requires a reasonable doubt passion provocation heat sudden the absence properly presented is in a homicide the issue case.” when at 703-704. Id. Carolina, pertinent our law of homicide to the North changed substantially not been since
questions here raised has Ellick, 1864 in N.C. 450. This it enunciated there said: Court proved intentionally, with that one has killed
“When showing deadly justification, weapon, ex- the burthen of mitigation, upon him.” Id. at 459. cuse or FALL TERM 1975
State v. Hankerson
$ $ $ [*] . . proved by “. fact of the homicide must State; showing admitted, but found or onus justification, *12 mitigation, prisoner.” excuse or is the Id. at 462. opinion by The saying Court in Ellick concluded any its that required fact which the is proved State to establish must be beyond doubt; prisoner reasonable but as to facts which the required is establish, to the must be satisfied the testi- mony they that are true. Ellick has been cited as authoritative in Phillips, 515, State v. 264 508, 142 N.C. 337, S.E. 2d 341 Creech, 662, and State v. 229 N.C. 51 S.E. 2d (1949). 357 early subject
Another of our on the cases was State Willis, (1868), holding 63 26 which while N.C. that the defend- mitigation prove justification by ant need not or preponder- evidence, approved ance of following the the nevertheless given by judge: instruction the trial proved it is or admitted that one “[W]hen killed another deadly intentionally, weapon, showing awith the burden of justification, mitigation excuse him, or is on and all the justification, such mitigation circumstances of excuse or satisfactorily proved by they him, are to be appear unless against him; killing being in the evidence that the fact of nothing proved admitted, appearing, or pre- more the law killing to malice, sumes such have been done in and so to be murder; that the justification, circumstances of excuse mitigation, satisfactorily proved, are to be proved as required is fact, to an essential is be- yond doubt, a reasonable for doctrine of reasonable applied is never prisoner, doubt condemnation of a acquittal; and that must but be satisfied testimony offered in the case on either side that mitigation justification, in the matter excuse or is true.” (Emphasis supplied.) at 26-27. Id. further: Court said prefer super anUquas vias, to stand and to
“We adhere to Ellick, down in the rules laid the State v. above referred to. In that case the erroneous statement which we had in- advertently Johnson, Peter made N.C. [48 (1855)] prisoner incumbent on beyond matters of extenuation establish excuse [288 IN THE SUPREME COURT doubt, corrected what corrected. it is also is reasonable of the as decision Court we consider erroneous Mass.) (1845)], (50 York Commonwealth v. Met. extenuation prisoner of excuse or matters according preponderance prove, must decided is to be think, say, we It more as correct evidence. jury.” Id. at they proved must to the satisfaction of 29. Dillard, Vann, (1880), Justice 82 N.C. In State v. Willis,
elucidating and wrote: down Ellick the law laid murder, the two constituents “In an indictment crime, to-wit, aforethought, voluntary malice charge; state, proved as it makes must be contrary until the presumed to be innocent the accused *13 proved. The kill- shown, of these elements must is both pre- ingredient, being ing shown, then other malice the by eyes law, not proved pense, as a fact is also by makes adduced, presumption law but a evidence killing. facts And these two essential the fact of the from being legal is, established, thereon conclusion thus charged omitted.) (Citations the offense is murder. by implication malice, the law and taken made “But may fact, party accused, on but a conclusive as may can, proofs, show, by He if he rebutted. be there was prepense thereby extenuate to no malice justifiable manslaughter, or make a case or excusable criminality by homicide, of no all or case at disabling insanity committed, the time of the act him to right wrong. (Citations omitted.) from burden The know can; proofs, other- to make these he accused lies if murder, .implied, will wise, the conclusion on malice for, against law, oblige him and will call and in continue a jury.” (Emphasis supplied.) conviction Miller, 878, 885, 167, 112 v. N.C. 17 S.E. 169 In State pointed killing (1893), out “that when the with the Court deadly proved weapon upon and admitted the burden is shifted satisfy jury, prisoner, and must he can do so from testimony, well of the as that offered for the the whole State defense, mitigation that matter relied on to for the show or is true.” excuse 1975 647 FALL TERM v.
State
early cases were decided before the
These
enactment
(now
1893,
14-17),
N. C. Pub. Laws
ch. 85
N.
Gen.
C.
Stat.
degrees.
which divided murder into two
act made certain
This
specified
including
murder,
premedi-
kinds of
a deliberate and
killing,
degree.
tated
murder in
first
All other kinds of mur-
degree.
der were made
the statute murder
in the second
Benton,
641, 657,
(1970).
State v.
276 N.C.
174
2d
S.E.
793
subsequent
Homicide cases decided
to this statute continued to
presumptions
sanction the
of unlawfulness and malice but re-
recognize any presumption
fused to
premeditation
de-
Brown,
271,
liberation. State v.
(1958) ;
249 N.C.
106
2d 232
S.E.
Absher,
656,
(1946) ;
State v.
226 N.C.
40
2d
S.E.
26
State v.
Keaton,
682,
;
206
(1934)
Rhyne,
N.C.
175
296
S.E.
847,
124
(1899) ;
Fuller,
N.C.
43 S.E. by satisfy prisoner jury, neither a reason- must “[T]he able doubt simply by yet preponderance evidence, but a nor satisfy them, facts and circum- of the existence of good mitigate a make the offense or which which stances plea self-defense.” of long adopted Satisfying jury, this Court the standard means, the instructions now under consideration and utilized in greater not believe, no time one a standard and the same
we significantly persuasion preponderance of the less than a Satisfying jury some that there must be means evidence. passion all heat sudden of elements of of on evidence offered self-defense, may be, this provocation of as the case satisfy persuade jury must the truth of of evidence existence provocations the crime of these which robs —one altogether. it and the other excuses malice when the Maine rules in Under considered killing beyond proved doubt that a reasonable jury intentional, (2) unlawful, was told that guilty proved he would of murder unless defendant be in preponderance of that he killed the heat the evidence manslaugh- only passion in which case he could convicted be beyond proved ter. Under North rules when the State Carolina killing resulting proximately from a reasonable doubt deadly jury weapon told, in use of here was intentional effect, would defendant be of murder the second he killed the heat unless “satifies” the passion or in self-defense. instructions here under of sudden consideration, unconstitutionally therefore, Maine, like those proving prosecution beyond the burden of relieved malice and doubt unlawfulness when the issues reasonable properly were raised. their existence no note there is evidence in this case of a We passion provocation. on sudden this in the heat Therefore Mullaney. “properly presented” There as was in issue is consequently, any Mullaney prejudicial not, error could aspect of the case. however, law, matter state As a and as *15 allocating here, proof our rules burden of on self- instructed early passion heat are the As 1868 this defense of same. as and FALL TERM 1975 v. Hankerson State supra said, proof “In the Willis, in State Court v. at 29-30 recognize any distinction between such matters we do case where the manslaughter, or murder question homicide is is whether the killing murder it is is and that where whether justifiable evi- There in this case excusable homicide.” regarding dence of The its existence issue self-defense. guidance judges, properly presented. con- our trial For the given sequently, jury and instructions inasmuch as there are killing, passion we as if there heat of were evidence a here have dicussed the matter present. if such were indeed as evidence beginning near the judge It is also trial did true that jury and at the end of his tell instructions beyond malice doubt prove had the reasonable both burden to a cognizant rule federal and are unlawfulness. We contextually jury in determin- instructions must considered be ing dimension. whether constitutional there is error federal Considering Cupp entire Naughten, (1973). v. U.S. contextually have meant instruction believe must we principle of abstract in this the state as matter case: charged, required was including each element of offense beyond doubt. reasonable unlawfulness, malice and deadly weapon so If, however, an intentional with a much) presumption (defendant proved here admitted this justifiable, presence of a of evidence arises even hence, the state lawful, relieves homicide nevertheless requires find the defend- proving unlawfulness and of de- it of the truth this evidence satisfies ant unless he did in self-defense. fendant’s contention that kill of our precludes [8] The traditional only utilizing presumptions ruling them in does not, of malice such however, way and unlawfulness. preclude to relieve the all use It the issue when on these elements state the burden of presumptions the evidence. of their existence is raised believe, standing and, constitu themselves, alone, are we valid ; 2d 558 Williams, 220 S.E. 288 N.C. tional. State pet. (1974), Sparks, 2d 712 285 N.C. 207 S.E. 669). 1974) (No. (U.S. filed, 43 Nov. cert. Neither, U.S.L.W. make Mullaney, to evidence unconstitutional reason of is it contrary mandatory in the absence presumptions arising logical from facts permit inferences nor proved Williams, deadly weapon), (killing use of intentional contrary weighed against evidence supra, remain *16 650 THE IN SUPREME COURT [288
State v. Hankerson produced. it tory making is The effect presumptions manda- any contrary in the simply impose absence of evidence is upon go the defendant a burden produce forward or with some evidence of all elements of passion self-defense heat or provocation, rely on sudden may pres- on such evidence as be ent in way mandatory presumption State’s case. The simply is stating legal our rule that in the absence of evidence mitigating justifying killings accomplished factors all through deadly the intentional weapon use of a are deemed be prosecution malicious and prove unlawful. The need not malice and unlawfulness unless in there is evidence the case of their McCormick, (2d nonexistence. Evidence n. 91 § Cf. 1972). language Ed. perceptive We find this Fletcher, in G. Legal “Two Comparative Kinds of Study A Rules: of Burden- Cases,” of-Persuasion-Practices in Criminal 77 Yale L.J. 905 (cited Mullaney in Wilbur, supra, v. 16) n. : “The step conceptual critical evolution of malice is MacKally’s Eng. Rep. 65b, Rep. (1611)]. Case. Co. early century That decision, 17th reported and in- terpreted by Coke, principle prosecu- stands for that the tion need not the element of malice to convict of judges murder. The realized that malice does not lend proof; by itself to affirmative large, the malicious is not, defined what reference to it is what agreed by all, type is. As one that was not malicious was killing provoked by quarrel. Thus, a sudden to have a malice, triable issue of one had to have a triable claim that the defendant quarrel.” killed the course of a sudden same, may believe, we be said of the element of unlawful- suggestion Mullaney ness. There is no placing such a bur- producing den of evidence a defendant violates Fourteenth “Many require Amendment Due Process. do States the defendant indicating to show that there is ‘some evidence’ that he acted passion requiring prosecution negate the heat of before by proving passion beyond this element the absence of reason- (Citations omitted.) Nothing able opinion doubt. in this requirement.” Mullaney intended to affect that Wilbur, supra, n. 28. tending If there is evidence to show all elements heat passion provocation mandatory on sudden or self-defense the
presumption unlawfulness, of malice and respectively, disap- logical pear remaining proved but inferences from the facts FALL TERM 1975 v. Hankerson Barnes, weighed may against In United States evidence. Supreme (1973), the said: U.S. 837 Court course, tend- that there some evidence “Of the mere fact ing explain possession consistent a defendant’s *17 instructing jury infer- the on the innocence does not bar weigh jury explanation The the to determine ence. must ‘satisfactory’. jury it The is not bound whether accept . . . any than any particular explanation more or believe But accept the it is bound the correctness of inference. beyond the proving burden of reasonable doubt the a knowledge stolen, property defendant did have that the govern- crime, an essential element of the remains on the ment.” (Judge 1975) (1st Dube,
See United States v.
Mullaney, it, then, interpreted our as we have judges their principles in homicide cases to follow these throughout jury must the burden instructions: the State bear charged including, proving the trial of element of the crime each beyond applicable, reasonable where malice and unlawfulness a rely mandatory pre- permits the on doubt. decision state to beyond a sumptions upon of malice and unlawfulness intentionally inflicted doubt reasonable the weapon proxi- deadly upon the wound deceased with mandatory mately presumptions If, after the resulted death. killing passion raised, there heat of are is no evidence of a self- provocation was in and no that the sudden evidence jury Mullcmey requires to be defense, permits and our law in the the of murder that defendant must be convicted instructed degree. hand, If, is evidence on the other there second provocation passion heat of on sudden case of all elements of logical mandatory disappears presumption of malice proved but to be in the case inferences from the facts remain considering weighed against the evi- upon If all this evidence. including heat of dence, the evidence of the inferences and left with doubt as passion, a reasonable guilty of find not of malice it must the defendant existence whether then should consider murder he is second manslaughter. If the case there is evidence in mandatory self-defense, presumption of all the elements of unlawfulness logical disappears from but the inferences weighed against If may proved evidence. facts IN THE SUPREME COURT State v. Hankerson considering including evidence, all the the inferences and evi- self-defense, dence of is left with a reasonable doubt as to the existence of unlawfulness it find must the defendant guilty.
V
This case
21, 1974; Mullaney
was tried November
was de
cided June
decline,
guidance
1975. We
without further
from
Supreme
give
Court, to
the decision retroactive effect. We
hope
believe and
Supreme
eventually
that the
Court will
deter
mine that
applies
prospectively only.
decision
If such a
eventually
determination is
Supreme
only
made
Court not
required
would we
apply
not be
principles
its
to the case
us,
now before
York,
;
Kaiser v. New
In pro- whether a new rule of constitutional given portions Supreme retroactive effect Court seems 653 1975 FALL TERM v. important factor The most three factors. to have considered new rule. purpose served to be to have been seems reliability the fact designed protect If the rule is serious presents a finding process error and “the constitutional may have been guilt not or innocence risk the issue will reliably the decision has then it been said determined” City v. Ivan V. given on full retroactive effect. this basis alone be retroactive) ; Winship, supra, York, supra (holding New In re v. Bruton (holding Russell, (1968) Roberts 293 v. 392 U.S. retroactive). States, (1968) United 391 123 U.S. Supreme then
If the first not determinative factor is reliance extent of Court considered other factors: has two Shott, 382 previous decisions, rel. on ex Tehan v. United States may though have (1966), been 406 new rule U.S. even States, by intervening cases, Desist v. United “foreshadowed” justice of supra and the on effect the administration only nation as application, retroactive Id. at not Tehan particular jurisdictions affected. whole but within the supra Shott, v. ex at 418-419. United States rel. clearly impor- Although most listed is first factor Supreme seems
tant, approached Court how that factor analysis factors. Com- depend other two sometimes to on pare supra (holding Shott, ex Tehan v. United States rel. Grif- retroactive), with California, (1965) v. 609 not 380 U.S. fin Stovall v. Denno, (1967) (holding States 388 293 United U.S. California, Wade, U.S. (1967) U.S. Gilbert holding Griffin, declared retroactive). not commenting practice unconstitutional California stand, retroactive failure to take the defendant’s only recognized although Supreme that, six Court Teham *19 every in Griffin, almost trial those states would be affected going years might upset many if six to be states back have devastating Noting impact were made retroactive. such Griffin justice, Supreme on the administration of Court said: compelling reaping greatest from “Those benefit a rule application retroactive would under be [those] Griffin many lengthy imposed years Their sentences before Griffin. offer the least likelihood of retrial cases would successful many, most, instances, and evidence since in are Shott, witnesses longer v. ex rel. no available.” Tehan United States supra at 418-419.
654 IN THE SUPREME COURT y.
Mullaney Winship poles apart are in extent terms of previous reliance on rules and the effect on the administra- justice tion application. retroactive It seems clear that Supreme previous Court saw no reliance New York on rules Winship. years It traced almost 100 of cases in which it had charge beyond “assumed that of a criminal a reasonable constitutionally required.” supra doubt is Winship, In re at 362. It Gault, (1967) express considered In re 1 re- 387 U.S. as an jection of the inapplica- notion that the Due Process Clause was juvenile proceedings. ble to furthermore, sequently, obviously Winship, supra Winship, In re at 365. juvenile proceeding. involved impact, Its con- justice
on the administration of
in New York would
applies
be less than a rule which
all
homicide cases.
instructions here under attack are based
firmly
rules which have been
with us for over one hundred
years.
application Mullaney
Retroactive
would,
in this State
furthermore,
recognized
affect,
Tehan,
have the same sort of
retroactivity
would have had in
other
California and
Griffin
jurisdictions.
30,
As
1975,
of June
there were 269 inmates in
prison in
degree
this State who had been convicted of first
mur-
serving
der
imprisonment
awaiting
sentences of life
execu-
tion, and
prison having
728 inmates in
been convicted of second
serving
ranging
murder
years
sentences
from two
to life.
State Correctional Statistical
Quarter,
Abstract
for the Second
If
applied
1975.
retroactively
is to be
might
new trials
have
many
to be awarded in
cases decades old.
A
jurisdictions
number of
would,
other
believe,
we
similarly
following
jurisdictions
affected.
seven
the de-
(or had)
fendant
prove by
has
preponderance
burden to
passion
evidence heat of
provocation (or
on sudden
“ex-
treme
distress”)
emotional
manslaughter:
to reduce murder to
Delaware,
State,
Fuentes v.
Rptr.
18
(Del.
Crim. Law
2153
Oct.
14, 1975) ; Hawaii,
(Mullaney
probably
would
affect
cases
appeal
finally
which the
prior
August
determined
27,
Compare
1971.
Santiago,
254,
53 Haw.
492 P. 2d 657
(1971)
Cuevas,
v.
53 Haw.
State
Gagne,_
;
v.
(1845)
Comm.
York,
(9 Met.) 93
v.
50 Mass.
Cf.
People
York,
;
v.
(1975) New
_,
907, 910
326 N.E. 2d
Mass.
Kings County
Supreme Ct.
Balogun,
(N.
2d 384
Y.
372 N.Y.S.
(Tenn.
157
State,
2d
1975) ; Tennessee,
v.
527 S.W.
Hawkins
requiring
Mullaney prohibits
believe,
App. 1975). If, as we
pre
pre
self-defense
acted in
the defendant
properly
issue is
ponderance
the evidence when that
adversely
following
jurisdictions would be
seven
sented
affected:
2d
State,
574, 198 S.E.
Georgia,
230 Ga.
Chandle v.
_
—, 218
State,
;
Ga.
(1973)
also Henderson v.
289
See
Poole,
Mullaney); Ohio,
v.
(citing
State
(1975)
612
S.E. 2d
prior
(for
18,
(1973)
cases
294
2d 888
33 Ohio
2d
N.E.
St.
Ann.
January 1, 1974,
Rev. Code
date of Ohio
effective
law) ;
(Page 1975)
probably corrects Ohio
2901.05
§
_
645
_,
A. 2d
Pennsylvania,
Cropper,
345
v.
Pa.
Comm.
;
Pennsylvania)
Mullcmey may
(1975)
affect
(intimating that
;
(1974) Comm.
Carbonetto,
93,
2d 304
Comm. v.
455 Pa.
314 A.
Island,
; Rhode
(1970)
Winebrenner,
73,
2d
v.
439 Pa.
265 A.
v.
Carolina,
;
State
Mellow,
(1919)
v.
South
State v. Hankerson jurisdictions We note that both cases from other which have Mullaney so far question, considered the have determined that given should not supra be State, retroactive effect. Fuentes v. ; (Delaware) People Balogun, supra (New York). v. given, For the reasons in the trial we find No error. concurring
Justice Lake in result. elementary It is Supreme that a decision of the Court interpreting United States Constitution of United binding although upon may States is and, this Court we believe it to erroneous, give be coming we must it full effect in cases before equally us. It resort, declaring elementary is that a decision of a court of last interpreting law, a rule of retro- applies active and to all decided, irrespec- cases thereafter to be tive they of when arose, unless court which rendered that decision declares clearly otherwise. This is more there true when prior has been conflicting no decision that court. This Court authority does not have Supreme declare a decision of the Court of the United States non-retroactive. silence that question Court on it, interpreting a decision Due Process gives Clause of the Amendment, Fourteenth meaning clause the just interpretation so declared as if the expressly had been written into it at the time the Amendment was ratified. hold, majority To as opinion Mullaney does, that v. Wilbur, 421 - -, U.S. S.Ct. L.Ed. 2d declares given instruction us, in the case now before violates the Due Process Amendment, Clause the Fourteenth will, but that nevertheless, we refuse to order a new trial is for deny this Court to right to this defendant his under the United agree States give I Mullaney Wilbur, Constitution. supra, retroactive effect and to hold that it declares instruc question
tion contrary to the Due Process Clause of the Fourteenth disastrous, ruling Amendment would be for such require would trial, only a new defendant, for this but an number, perhaps unknown hundreds, prisoners now serv ing sentences for they murders of which this Court has held lawfully were practical convicted. effect would be to release upon most of these society, convicted murders since of wit loss nesses, passage time, would, due to instances, pre- most FALL TERM 1975 vent averted if conviction a retrial. can be This disaster Supreme declares Court of the United States devoutly Wilbur, supra, non-retroactive, consummation authority desired, and, to be but this has no declare Court so to date, Supreme of the United has not Court States done so. whereby way, however,
There is can avoid this this Court *22 my and, opinion, disastrous result should do That is to so. hold, correct, Wilbur, supra, I as believe is v. jury by does given Superior not declare the instruction to the Court in Hankerson’s case a violation of the Due Process Clause. true, If that be Hankerson entitled to a new is not trial and the majority opinion wrong has reached the correct result for reason. question:
This is the instruction in charged system, person “Under our with a when a guilty pleads prove crime and he not he does not have to presumed innocent, innocent, that he is bur- he is and the prove beyond den is on the State to a reasonable guilty guilty. you doubt that ishe can find him before $ $ $ charge guilty you “I to find the defendant degree second charged murder crime with which Hankerson was [the convicted], and of which he must stands State * ** prove things beyond two doubt a reasonable intentionally justification defendant and without or excuse Gregory deadly weapon. and with malice shot Ashe awith * * * prompts Malice person means that condition mind which intentionally, to take the inten- life of another or to tionally deadly weapon upon a wound another with a inflict proximately just cause, results in death without justification. excuse or
“In order to reduce the crime from [*] [*] [*] second degree mur- manslaughter, prove beyond der to must not simply your reasonable doubt but that there satisfaction part. was no malice on his And in order to excuse his act grounds altogether defense, self the defendant prove beyond simply to must your a reasonable doubt but he acted self defense.
satisfaction THE COURT SUPREME IN
[*] [*] [*] you charge Gentlemen, you, I Ladies “So if find beyond that on reasonable doibbt from the evidence and defendant, Johnnie B. September 29, or about Hankerson, justi- intentionally and without and with malice Gregory [i.e., or excuse not in self shot defense] fication causing thereby deadly weapon, proximately Ashe with a nothing Gregory appearing, death, else it would be Ashe’s degree your duty guilty to return a verdict of of second you find, reason- However, or have a murder. do not so you things, doubt one or more these will not able as to degree (Em- murder.” return a verdict of of second added.) phasis By judge squarely upon put this instruction the trial every beyond ele- a reasonable doubt burden namely: murder, The defendant shot
ment Ashe; (2) second thereby death; (3) deadly proximately he caused Ashe’s intentionally (i.e., shot Ashe with malice justification weapon) ; (4) he shot or excuse Ashe without *23 defense). (i.e., not in self
Clearly, jury told, the rule this were all that the fully Wilbur, supra, But, of would be satisfied. says They they were majority, the not told. also this is all were manslaughter told that must to reduce the offense to the defendant prove jury’s to the not Ashe with he did shoot satisfaction killing entirely ground malice, and to excuse the on the of jury’s defense, prove self the to defendant must the satisfaction defense, that he killed Ashe in self the of which were elements correctly defined. contradictory glance
At to first it seems inconsistent and jury instruct the the the be- State has burden yond presence a reasonable doubt the malice absence justification the the defense and the defendant has self jury proving burden of to the the the absence satisfaction of justification presence or the of the of self defense. malice however, contrary many times, has, held the the the This Court harmonizing lying meaning factor of the term “to jury.” of the satisfaction FALL TERM 1975
State v. Freeman, 662, 666, 2d
In State v. 170 S.E. 275 N.C. Sharp, Justice, speaking Justice for a unanimous now Chief Court, said: reiter-
“These
enunciate and
cases [citations omitted]
hundred
ate the rule —established in our law for over one
years,
Willis,
when the
the absence of malice “to the does satisfaction require showing “by greater weight of the evidence.” satisfy requirement
If the defendant less than can this “greater weight” evidence; persuasive, less that is convincing tip less evidence than would be sufficient slightly favor, ever scales so how can be said that proof put upon burden is the burden to “has been him?” The burden of persuade mind, A burden less convince. only reasonable, than this can a be burden to establish a rational inconsistency telling jury Thus, that, doubt. there is no degree murder, to convict of second the State must prove presence justification (self of malice and absence of de- beyond fense) although and, a reasonable doubt has beyond proved, doubt, a reasonable an intentional deadly weapon, charge acquitted the defendant must be of that pres- if he has of the absence of or the malice satisfied justification (self defense). ence of Admittedly, expected cannot be know what *24 proof said jury” Court has “to the satisfaction of the does question jury mean. The by is the whether could have been misled judge charge what the trial told them in his in this case. clearly stated, unequivocally As they above and told the guilty degree must find the defendant not of second mur- proved beyond der unless the State had doubt a reasonable every crime, including presence element of that the of malice justification (self and defense). my the absence of opinion, degree which found this defendant of second IN THE SUPREME COURT y. Curry charge this, and the murder not have confused about could been court, statement of of this of the a correct the law any way State, place the defendant a burden did not of Fourteenth Due forbidden Process Clause supra. Mullaney Wilbur, now Amendment as construed majority’s de I, therefore, conclusion that concur fendant not entitled to a new trial. CURRY, DALE
STATE CAROLINA v. ROGER JOSEPH OF NORTH JOHNSON, GUNTER, RONALD MICHAEL ALBERT WILLIAM JOHNSON, BOWLES, GENE JAMES OLIVER ALLEN LOWELL STEVENS 37No. 1975) (Filed 17 December 5; Breakings Robbery degree Burglary bur- 4— § § 1. and Unlawful first — — robbery sufficiency glary with firearm evidence charges of bur- Defendants’ motions to dismiss the first robbery glary properly where the with a firearm were denied and during the to show that the victim was awakened evidence tended shining night by light growling dog, he man flash- observed a window, man the house and told the victim into his entered dog talk, and come victim refused and armed to call his outside house, pistol, left the victim observed himself with eight the intruder standing yard, men and in his three entered the house armed began fire, firing men at the who returned their the three victim outside, they men the the left victim to victim through into the house from one told and fired house, gun throw his down or would burn the complied, eight him, eight men beat and the then went emptying boxes, smashing victim’s fur- house drawers taking belonging niture, victim, items to the and the various participants defendants victim identified six in the crime. — standing 1— cellar de- 2. Searches and Seizures search of shed § object fendants standing object had to the admission into evi- Defendants no weapons found a shed in the dence of and articles in the cellar of vicinity occupied by anyone crime, of the since the shed was not discovery of the and seizure of the articles and was not time part premises occupied defendants,, aor of the then none the defend- any shed, ants ownership about and no defendant asserted possessory therein; photograph furthermore, interest themselves articles seized and articles were admissible in they during warrantless, lawful, though evidence since were seized probable who search of the shed officers had cause to believe probably vicinity. two the defendants were concealed in the