State v. Oxendine

24 N.C. App. 444 | N.C. Ct. App. | 1975

MARTIN, Judge.

Defendant’s first assignment of error is that the court erred in overruling defendant’s objection to the testimony of Officer Luther Sanderson as to statements made to him by defendant after defendant had been taken into custody. Pursuant to defendant’s motion to suppress, the court conducted a voir dire examination to determine the competency of the challenged evidence. The evidence on voir dire tends to show, and the court found:

“ . . . after the defendant had been taken into custody by Officer Luther Sanderson, Deputy Sheriff, and fully advised of his Constitutional Rights, as required by the Miranda Rule, the defendant declined to answer any questions asked by Officer Sanderson; that on the way to the jail the defendant made several spontaneous statements which were not in response to any questions asked by Officer Sanderson. The Court is of the opinion and finds and concludes that the spontaneous statements made by the defendant were freely and voluntarily made and are admissible in evidence. The Court finds that the defendant had been drinking but that he was not drunk and knew and understood what he was doing and saying.”

The incriminating statement was thereupon admitted into evidence. It is settled law that the findings of the trial judge when supported by competent evidence, as here, are binding and conclusive in appellate courts in this jurisdiction. State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972). Volunteered statements are competent evidence, and their admission is not barred under any theory of the law, state or federal. State v. Haddock, 281 N.C. 675, 190 S.E. 2d 208 (1972). No waiver is involved with respect to voluntary statements. State v. Haddock, supra. Nor does the mere fact of intoxication render inadmissible his statements which tended to incriminate him. . . . [T]he extent of his intoxication when the confession was made is relevant; and the weight, if any, to be given a confession under the circumstances disclosed is exclusively for determination by the jury.’ [Citations.]” State v. Beasley, 10 N.C. App. 663, 179 S.E. 2d 820 (1971). The assignment of error addressed to the admission of defendant’s statements is overruled.

Defendant excepts to the following portion of the charge:

“ . . . upon proof beyond a reasonable doubt of intentional killing with a deadly weapon, the law then casts upon the defendant the burden of satisfying the jury of — not beyond a reasonable doubt nor by the greater weight of the evidence, but simply satisfying the jury of facts and circumstances or provocation which would remove the elements of malice, that is, rebut it, and reduce the crime to manslaughter.”

The defendant contends that the court’s instruction “does not seem to correctly state defendant’s burden.” He contends that his burden is to satisfy the jury that the intentional killing with a deadly weapon was without malice and not to satisfy the jury of facts and circumstances or- provocation which will remove the element of malice.

“When the State satisfies the jury from the evidence beyond a reasonable doubt that defendant intentionally shot the deceased and thereby proximately caused his death, the law raises two presumptions against him: First, that the killing was unlawful; and, second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. [Citations.] ‘The law then casts upon the defendant the burden of showing to the satisfaction of the jury, if he can do so — not by the greater weight of the evidence nor beyond a reasonable doubt, but simply to the satisfaction of the jury — from all the evidence, facts and circumstances, the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or that will excuse it altogether upon the ground of self-defense .... The legal provocation that will rob the crime of malice and thus reduce it to manslaughter, and self-defense, are affirmative pleas, with the burden of satisfaction cast upon the defendant.’ [Citation.]” State v. Barrow, 276 N.C. 381, 172 S.E. 2d 512 (1970).

Thus, the challenged instruction is supported by the decisions of our Supreme Court and defendant’s exception thereto is overruled.

Defendant’s remaining assignment of error is without merit and is overruled.

No error.

Judges Morris and Arnold concur.