23 N.C. App. 162 | N.C. Ct. App. | 1974
This is the second time this case has been before us, It appears the first time in 19 N.C. App. 395, 198 S.E. 2d 744 (1973).
The defendant first contends that the triar court erred in its definition of proximate cause in its charge to the jury for that the element of foreseeability was omitted.
Next the defendant contends that the trial court erred in admitting evidence of certain experiments with the death weapon. He specifically argues that there was no evidence that the pistol was in substantially the same condition as on the day of the killing; that the firearms expert could not testify as to whether the pistol was mechanically damaged; that the pistol had only the primed bullet in it rather than a clip of eight as was established at trial and that the expert only dropped the pistol onto a board which is riot a similar condition as compared to defendant’s testimony that he was grabbing at it and was not sure it hit anything.
“When the experiment is carried out under substantially similar circumstances to those which surrounded the original transaction, and in such a manner as to shed light on that transaction, the results may be received in evidence .... Whether the circumstances and conditions are sufficiently similar ■. . : is of course a preliminary question for the court, and unless too wide of the mark, the ruling thereon will be upheld on appeal.” State v. Phillips, 228 N.C. 595, 598, 46 S.E. 2d 720, 722 (1948). If the experimental evidence contributes to the end of finding the truth of the matter in question, it should be admitted. 22A C.J.S., Criminal Law, § 645(1), p. 519. The measure of variation allowed between circumstances surrounding the original transaction and that of the experiment is generally tested by the tendency of the variation to confuse the jury. See State v. Phillips, supra.
The purpose of submitting the results of the tests in this case was manifest, to-wit, that a pistol with a grip-type safety is so constructed that it will not discharge upon being dropped on its handle from various heights. This merely showed the jury that the pistol would not fire by being dropped unless the grip safety was depressed. It did not rule out the possibility as brought out on cross-examination, that the defendant could have grabbed the gun simultaneously with it striking the floor and have it fire. The fact that the defendant contends he was grabbing at the pistol as it fell does not render the test evidence
The other contentions of the defendant relating to the experiments were also without merit. A chain of custody was established whereupon the gun was finally delivered to the firearms expert. There was testimony that no one before the expert tested the weapon so as to alter its condition. The expert personally fired the pistol prior to the tests to match ballistics with the death bullet. The pistol was in working order and was tested less than three weeks after the shooting. Further, the fact that the pistol had eight cartridges in it on the day of the shooting and only one primed cartridge in it during the testing is not such a variation that it would destroy the utility of the test and confuse the jury. “The want of exact similarity would not perforce exclude the evidence, but would go to its weight . ... ” State v. Phillips, supra, at 598, 46 S.E. 2d 722. There was no abuse of discretion here in allowing the State to introduce this evidence.
The defendant contends that the trial court erred in failing to dismiss the case as of nonsuit. In a motion for nonsuit, the trial judge is required to consider the evidence in' the light most favorable to the State and give the State the benefit of every reasonable inference to be drawn therefrom. State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971). The defendant contends that there was not enough evidence of “intent” to prove second-degree murder. “Intent,” however, is a mental emotion or attitude which is seldom capable of direct proof and which must ordinarily be proven by circumstances from which it may be inferred. State v. Arnold, 264 N.C. 348, 141 S.E. 2d 473 (1965). These circumstances must be weighed and considered by a jury. There was sufficient evidence of the circumstances to submit the case to the jury on the question of the defendant’s intent to kill.
The defendant’s last contention of error was that the trial judge erred in charging the jury on the offense of voluntary manslaughter. It was argued that there was no evidence of “heat of passion” to support such a charge. This is without merit and, at most, harmless error and not prejudicial to the defendant.
We find no prejudicial error.
