State v. McWilliams
178 S.E.2d 476
N.C.
1971
Check Treatment
HUSKINS, Justice.

Defendant brings forward three assignments of error, which will be discussed in the order in which they appear in his brief.

Defendant contends the court erred in its charge with respect to the circumstances under which the jury might return a verdict of not guilty, and quotes isolated portions of the charge in connection therewith. This assignment is without merit. At one point the court charged: “If from all the evidence you have a reasonable doubt that he did hit and kill the deceased with malice, you will acquit the defendant of the charge of murder in the second degree and consider whether or not he is guilty of manslaughter.” At another point the court charged: “In order to be guilty at all, the defendant must have fought willingly but wrongfully. If he fought willingly but rightfully, that is, exclusively in his own self-defense, no excessive force being used, he should be acquitted, but he is entitled to have the jury judge his conduct by circumstances as they reasonably appeared to him at the time of the homicide.” Again the court said in its charge: “Gentlemen, it is your duty to determine by your verdict whether the defendant is guilty of murder in the second degree;' manslaughter or not guilty, and you will return one of three! verdicts depending upon how you find. You will find the defendant guilty of murder in the second degree or you will find the defendant guilty of manslaughter or you will find him not guilty.”

The foregoing instructions were given in connection with the portions of the charge which defined, explained, and applied the law to second-degree murder, manslaughter, and defendant’s plea of self-defense. We think the jury clearly understood the circumstances under which it should return a verdict of not guilty. A charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a *685 whole is correct. State v. Cook, 263 N.C. 730, 140 S.E. 2d 305 (1965); State v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334 (1964); State v. Taft, 256 N.C. 441, 124 S.E. 2d 169 (1962). If the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for a reversal. State v. Hall, 267 N.C. 90, 147 S.E. 2d 548 (1966). Furthermore, insubstantial technical errors which could not have affected the result will not be held prejudicial. State v. Norris, 242 N.C. 47, 86 S.E. 2d 916 (1955). The judge’s words may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred. State v. Gatling, 275 N.C. 625, 170 S.E. 2d 593 (1969); State v. Jones, 67 N.C. 285 (1872).

Defendant says the trial judge erroneously assumed that the proximate cause of Bloss Manning’s death was admitted and therefore erred in failing to charge on the element of proximate cause. This constitutes his second assignment of error.

Defendant’s plea of not guilty put in issue every essential element of the crime charged. State v. McLamb, 235 N.C. 251, 69 S.E. 2d 537 (1951); State v. Courtney, 248 N.C. 447, 103 S.E. 2d 861 (1958). To warrant defendant’s conviction upon the charge of second-degree murder or manslaughter, the State must produce evidence sufficient to establish beyond a reasonable doubt that the death of Bloss Manning proximately resulted from defendant’s unlawful act. State v. Hendrick, 232 N.C. 447, 61 S.E. 2d 349 (1950); State v. Palmer, 230 N.C. 205, 52 S.E. 2d 908 (1949). Defendant insists that he made no admission or statement that he killed the deceased and that the cause of death should have been submitted to the jury under proper instructions.

The record discloses that defendant, in open court, judicially admitted that “the cause of death was an acute skull fracture with cerebral contusions caused by a blow to the head of the deceased.” In his own testimony defendant swore that he struck Bloss Manning in the mouth with his fist and knocked him down; that while Bloss was lying on the ground “not moving” he picked up a stick of wood from the bed of the truck and struck Bloss once or twice “beside the head” with it; that he split his head open with the stick and saw blood all over the *686 place; that he took two wallets from the victim’s pockets, tied his hands and feet and placed a gag in his mouth; that he then left the scene. All the evidence shows he was picked up by Officer Perry within an hour. Meanwhile, Bloss Manning had already been .found — bound hand and foot, gagged, and with a big gash four inches long across the side of his head. He was dead.

This evidence and defendant’s judicial admission establish beyond a reasonable doubt that death was caused by the vicious blows to the victim’s head administered by defendant. Defendant swore he split the victim’s head open with the blows he struck and stipulated that death was caused by a skull fracture resulting from a blow to the head. This is sufficient to remove the cause of death from contention and constitutes an admission that the head wound inflicted by defendant was fatal. Certainly there is no suggestion and no evidence that anyone else inflicted a head wound on Bloss Manning. A stipulation of fact is an adequate substitute for proof in both criminal and civil cases. State v. Powell, 254 N.C. 231, 118 S.E. 2d 617 (1961). “Such an admission is not evidence, but rather removes the admitted fact from the field of evidence by formally conceding its existence. It is binding in every sense, preventing the party who makes it from introducing evidence to dispute it, and relieving the opponent of the necessity of producing evidence to establish the admitted fact. In short the subject matter of the admission ceases to be an issue in the case. ...” Stansbury, North Carolina Evidence (2d Ed. 1963), § 166.

State v. Ramey, 273 N.C. 325, 160 S.E. 2d 56 (1968), and State v. Redman, 217 N.C. 483, 8 S.E. 2d 623 (1940), relied on by defendant, are readily distinguishable. In each of those cases the defendant admitted that he shot the deceased, but not that he inflicted a fatal wound. Here, defendant testifies that he struck the deceased in the head and judicially admits that an acute skull fracture caused by a blow to the head was fatal. Under all the facts of the case this is tantamount to an admission that defendant’s conduct was the proximate cause of death; hence, the court’s general instructions on proximate cause were sufficient. This assignment of error is overruled.

Finally, defendant assigns as error the denial of his motion for nonsuit on the common-law robbery charge. He *687 argues in Ms brief that “[t]he record is1 void of any evidence from which the jury could find that the violence used in this case was simultaneous with and for the purpose of feloniously taking the goods of Bloss Manning. The items of personal property were taken from the deceased only after he had fallen to the ground unconscious. The taking of the wallets1 and money was merely an afterthought of the defendant.”

“Robbery at common law is the felonious taking of money or goods of any value from the person of another or in his presence against his will, by violence or putting him in fear.” State v. McNeely, 244 N.C. 737, 94 S.E. 2d 853 (1956); State v. Bell, 228 N.C. 659, 46 S.E. 2d 834 (1948). As an essential element of the offense the taking must be done with the felonious intent on the part of the taker to deprive the owner of his property permanently and to convert it to the use of the taker. State v. Lawrence, 262 N.C. 162, 136 S.E. 2d 595 (1964); State v. Smith, 268 N.C. 167, 150 S.E. 2d 194 (1966).

By introducing testimony at the trial, defendant waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State’s evidence. His later exception to the denial of his motion for nonsuit made at the close of all the evidence, however, draws into question the sufficiency of all the evidence to go to the jury. State v. Norris, supra (242 N.C. 47, 86 S.E. 2d 916); State v. Gay, 251 N.C. 78, 110 S.E. 2d 458 (1959); State v. Robbins, 275 N.C. 537, 169 S.E. 2d 858 (1969); G.S. 15-173. And when all the evidence, that of the State and that of the defendant, is to the same effect and tends only to exculpate the defendant, his motion for judgment as of nonsuit should be allowed. State v. Fulcher, 184 N.C. 663, 113 S.E. 769 (1922); State v. Hamby, 276 N.C. 674, 174 S.E. 2d 385 (1970). But if there is any evidence which reasonably tends to show guilt of the offense charged and from which a jury might legitimately convict, the nonsuit motion should be denied. State v. Bogan, 266 N.C. 99, 145 S.E. 2d 374 (1965). Our inquiry is thus limited to whether there is sufficient evidence to support the conviction. State v. Thompson, 227 N.C. 19, 40 S.E. 2d 620 (1946).

Here, defendant’s own statement is inculpatory as well as exculpatory. He says on the one hand that he struck deceased only in self-defense and, on the other hand, he told the sheriff *688 that his victim was on the ground unconscious when he split his head open with the stick or pole and took both wallets “because he didn’t have any money, needed money . In addition to his statement, circumstantial evidence belies the truth of that portion of his statement exonerating him and from which the jury might legitimately conclude that he formed the intent to rob his victim prior to the violent assault. The evidence as a whole and the conflicting inferences arising from defendant’s statement itself were sufficient to make his guilt a question for the jury. State v. Mitchum, 258 N.C. 337, 128 S.E. 2d 665 (1962). Nonsuit of the robbery charge was properly denied.

No error.