State v. Alston ( 1979 )

259 S.E.2d 767 (1979) 44 N.C. App. 72

STATE of North Carolina
v.
James Milton ALSTON.

No. 797SC498.

Court of Appeals of North Carolina.

November 20, 1979.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Lucien Capone III, Raleigh, for the State.

J. Henry Banks, Henderson, for defendant-appellant.

VAUGHN, Judge.

Defendant assigns error in the denial of his motion for nonsuit at the close of the State's evidence. Defendant presented evidence following the denial of his motion and did not renew the motion. "If the defendant introduces evidence, he thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal." G.S. 15-173; State v. Rhyne, 39 N.C.App. 319, 250 S.E.2d 102 (1979).

Pursuant to G.S. 15A-1227(d) and G.S. 15A-1446(d)(5), defendant could have requested review of the sufficiency of all of the evidence without regard to whether the proper motion or exception had been made during trial. On our own motion, we have reviewed the sufficiency of all the evidence to take the case to the jury.

Defendant was convicted of second-degree murder which is the unlawful killing of a human being with malice but without premeditation and deliberation.

"The intentional use of a deadly weapon proximately causing death gives rise to presumptions that (1) the killing was unlawful, and (2) the killing was done with malice. This is second-degree murder." State v. Bush, 289 N.C. 159, 170, 221 S.E.2d 333, 340, death sentence vacated, 429 U.S. 809, 97 S.Ct. 45, 50 L.Ed.2d 69 (1976); see also State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971).

Malice on the part of defendant is established in the case by inference from the use of a deadly weapon and by the surrounding circumstances including the two earlier assaults and the accusations concerning deceased's romantic relationship with defendant's wife. We hold the State presented sufficient evidence of the essential elements of second-degree murder to take the case to the jury.

Defendant's only other assignment of error is in the trial judge's instruction to the jury on the law of self-defense. The trial judge instructed:

"Now, a killing would be excused entirely on the grounds of self-defense, if: First, it appeared to the defendant and he believed it to be necessary to shoot Mitchell in order to save himself from death or great bodily harm, and, second, the circumstances as they appeared to the defendant at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. It is for you the jury to determine the reasonableness of the defendant's belief from the circumstances as they appeared to him at the time." (Emphasis added).

This properly instructs the jury that "one may fight in self-defense and may use more force than is actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief." State v. Francis, 252 N.C. 57, 59, 112 S.E.2d 756, 758 (1960); see also State v. Hearns, 9 N.C.App. 42, 175 S.E.2d 376 (1970).

No error.

ERWIN and HILL, JJ., concur.