State v. Barbour , 28 N.C. App. 259 ( 1976 )

BRITT, Judge.

Defendant assigns as error the denial of his timely made motions to dismiss all charges, particularly his motion to dismiss as to first-degree murder. The assignments have no merit.

Murder in the first degree is the unlawful killing of a human being with malice, premeditation and deliberation. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969). When the State satisfies the jury beyond a reasonable doubt that the defendant intentionally shot the deceased with a pistol, thereby proximately causing his death, there arise the presumptions that the killing was (1) unlawful and (2) with malice, constituting the offense of murder in the second degree. State v. Propst, 274 N.C. 62, 161 S.E. 2d 560 (1968). While the State must prove premeditation and deliberation, ordinarily it is not possible to prove these elements directly. Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are want of provocation on the part of the deceased, the conduct of defendant before and after the killing, and the use, of grossly excessive force. State v. Brittr 285 N.C. 256, 204 S.E. 2d 817 (1974). No fixed length of time is required for the mental processes of premeditation and deliberation constituting an element of first-degree murder. State v. Perry, 276 N.C. 339, 172 S.E. 2d 541 (1970).

Clearly, the evidence presented by the State was sufficient to show defendant intentionally shot Abner with a pistol, and that within minutes Abner died from wounds inflicted by the bullet, thereby raising the presumptions that the killing was unlawful and with malice. We think the showing of want of provocation on the part of Abner, the conduct of defendant before the shooting and particularly his threat to kill McDonald and his taking careful aim at Abner, together with the use of grossly excessive force, warranted the trial court in submitting the case on first-degree murder.

Defendant assigns as error the failure of the court to grant his motion for a mistrial when the prosecuting attorney, in close proximity to the jury, removed from a plastic bag a foul smelling bloody shirt allegedly worn by Abner at the time he was shot. This assignment has no merit. To allow the motion was within the sound discretion of the trial judge. We perceive no abuse of this discretion. 3 Strong, N. C. Index 2d, Criminal Law § 128.

Defendant assigns as error the failure of the court to instruct the jury as requested by him on the law with respect to citizen’s arrest and on the law arising from defendant’s evidence that he believed he was acting as a law enforcement officer. These assignments have no merit.

At the time of the alleged offense, the following statute, former G.S. 15-40, which has been repealed, was in effect: “Every person in whose presence a felony has been committed may arrest the person whom he knows or has reasonable ground to believe to be guilty of such offense . . . . ” Defendant argues that the statute gave him the right as a citizen to arrest Abner whom he had reasonable ground to believe was committing a felony — possessing narcotic drugs — and that it was a question for the jury whether defendant acted reasonably. We reject this argument.

In State v. Mobley, 240 N.C. 476, 481, 83 S.E. 2d 100, 103 (1954), we find:

“G.S. 15-40 (Subchapter 1, Section 6 of the Act of 1869) authorizes private persons to make arrests in certain felony cases. By the terms of this statute, when a felony actually has been committed in the presence of a private person, he may forthwith arrest without warrant (1) the person he knows to be guilty, or (2) the person he has reasonable ground to believe to be guilty. It is noted that this statute confers on a private citizen the right of arrest only when a felony is actually committed in his presence. Thus, if it turns out that the supposed offense is not a felony, then the arresting private citizen may not under the terms of the statute justify taking the suspect into custody. ...”

For defendant to have had the protection of the above quoted statute, he had to show that Abner actually committed a felony in his presence, not merely that he had reasonable ground to believe Abner was committing a felony. This defendant failed to show.

Defendant’s contention that he believed he was acting as a police officer is not persuasive. Assuming, arguendo, that the letter from the Chief of Police of the Town of Graham provided defendant with reason to believe he had authority to act as a police officer in that town, he had no reason to believe that his authority would extend to the City of Burlington. See Martin v. Houck, 141 N.C. 317, 54 S.E. 291 (1906) ; State v. Campbell, 107 N.C. 948, 12 S.E. 441 (1890).

Defendant assigns as errors portions of the jury charge relating to presumptions of malice arising from a showing of intentional use of a deadly weapon and death resulting therefrom. By Exception 139, he excepts to instructions shifting the burden to defendant to show no malice after the State had shown intentional shooting with a pistol and death resulting therefrom. We find no merit in these assignments unless the instructions challenged by Exception 139 are invalid under Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975).

In State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975), our State Supreme Court held that the ruling in Mullaney does not apply to the presumption of malice that arises when the State proves beyond a reasonable doubt that the accused intentionally inflicted a wound with a deadly weapon proximately causing death. See also, State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575, (1975), holding that Mullamey will not be given retroactive effect in North Carolina and will apply only to trials conducted on or after 9 June 1975.

We have carefully considered the other assignments of error brought forward and argued in defendant’s brief and find them likewise to be without merit.

We hold that defendant received a fair trial, free from prejudicial error.

No error.

Judges Parker and Clark concur.