State v. Corn

278 S.E.2d 221 (1981)

STATE of North Carolina v. Ernest Thomas "Pete" CORN.

No. 46.

Supreme Court of North Carolina.

June 2, 1981.

*223 John R. Hudson, Jr., Brevard, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Douglas A. Johnston, Raleigh, for the State.

COPELAND, Justice.

Defendant presents seven assignments of error for our consideration on appeal. We find merit in defendant's third assignment and remand the case to the trial court for a new trial.

Defendant assigns as error the trial court's denial of his motion to dismiss the first degree murder charge. He maintains that the State presented insufficient evidence of premeditation and deliberation to sustain a conviction of first degree murder.

In order for the trial court to submit a charge of first degree murder to the jury, there must have been substantial evidence presented from which a jury could determine that the defendant intentionally shot and killed the victim with malice, premeditation and deliberation. State v. Horton, 299 N.C. 690, 263 S.E.2d 745 (1980); State v. Heavener, 298 N.C. 541, 259 S.E.2d 227 (1979); State v. Baggett, 293 N.C. 307, 237 S.E.2d 827 (1977). "Substantial evidence" is that amount of relevant evidence that a reasonable mind might accept as sufficient to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). In ruling upon defendant's motion to dismiss on the grounds of insufficient evidence, the trial court is required to interpret the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. Fletcher, 301 N.C. 709, 272 S.E.2d 859 (1981); State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980).

Premeditation has been defined by this Court as thought beforehand for some length of time, however short. No particular length of time is required; it is sufficient if the process of premeditation occurred at any point prior to the killing. State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980); State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970); State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969). An unlawful killing is committed with deliberation if it is done in a "cool state of blood," without legal provocation, and in furtherance of a "fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose." State v. Faust, 254 N.C. 101, 106-07, 118 S.E.2d 769, 772 (1961). The intent to kill must arise from "a fixed determination previously formed after weighing the matter." State v. Exum, 138 N.C. 599, 618, 50 S.E. 283, 289 (1905). See also State v. Baggett, supra; State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974).

Since premeditation and deliberation are processes of the mind, they are not susceptible to direct proof and must almost always be proved by circumstantial evidence. Among the circumstances which may be considered as tending to prove premeditation and deliberation are: lack of provocation by the deceased; defendant's acts and comments before and after the killing; the use of grossly excessive force or the infliction of lethal blows after the deceased has been felled; and any history of altercations or ill will between the parties. State v. Myers, supra; State v. Baggett, supra; State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973).

After carefully considering the evidence presented in the case sub judice in the light most favorable to the State, we find that the State has failed to show by substantial evidence that defendant killed Lloyd F. Melton with premeditation and deliberation. The shooting was a sudden event, apparently brought on by some provocation on the part of the deceased. The evidence is uncontroverted that Melton entered defendant's *224 home in a highly intoxicated state, approached the sofa on which defendant was lying, and insulted defendant by a statement which caused defendant to reply "you son-of-a-bitch, don't accuse me of that." Defendant immediately jumped from the sofa, grabbing the .22 caliber rifle which he normally kept near the sofa, and shot Melton several times in the chest. The entire incident lasted only a few moments.

There is no evidence that defendant acted in accordance with a fixed design or that he had sufficient time to weigh the consequences of his actions. Defendant did not threaten Melton before the incident or exhibit any conduct which would indicate that he formed any intention to kill him prior to the incident in question. There was no significant history of arguments or ill will between the parties. Although defendant shot deceased several times, there is no evidence that any shots were fired after he fell or that defendant dealt any blows to the body once the shooting ended.

All the evidence tends to show that defendant shot Melton after a quarrel, in a state of passion, without aforethought or calm consideration. Since the evidence is insufficient to show premeditation and deliberation, we find that the trial court erred in instructing the jury that they could find defendant guilty of first degree murder and defendant is awarded a new trial for a determination of whether or not defendant is guilty of second degree murder, voluntary manslaughter or not guilty.

Defendant's remaining assignments of error are unlikely to recur at retrial, therefore we deem it unnecessary to discuss them at this time.

For the reasons stated above, this case is remanded to the Superior Court, Transylvania County, for a

NEW TRIAL.