# State v. Forrest

> Supreme Court of North Carolina · December 2, 1987 · 321 N.C. 186

URL: https://www.frixlaw.com/law-library/cases/9577513

## Case

- **Full name:** State of North Carolina v. John Forrest
- **Court:** Supreme Court of North Carolina
- **Decided:** December 2, 1987
- **Citations:** 321 N.C. 186; 362 S.E.2d 252; 1987 N.C. LEXIS 2561
- **Precedential status:** Published
- **Opinion:** Dissent by Exum
- **Judges:** Meyer, Exum
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9577513

## How later opinions describe it (automated extraction)

- concluding that sufficient evidence of premeditation existed when the revolver defendant used in the murder “had to be cocked each time before it could be fired”
- holding that trial court did not err in instructing jury that it could infer malice from use of deadly weapon

## Opinion text

*200 Chief Justice Exum
dissenting.
Almost all would agree that someone who kills because of a desire to end a loved one’s physical suffering caused by an illness which is both terminal and incurable should not be deemed in law as culpable and deserving of the same punishment as one who kills because of unmitigated spite, hatred or ill will. Yet the Court’s decision in this case essentially says there is no legal distinction between the two kinds of killing. Our law of homicide should not be so roughly hewn as to be incapable of recognizing the difference. I believe there are legal principles which, when properly applied, draw the desirable distinction and that both the trial court and this Court have failed to recognize and apply them.
The difference, legally, between the two kinds of killings hinges on the element of malice, the former being without, and the latter with, malice. The absence of malice, however, does not mean the killing is justified or excused so as not to be unlawful; it means simply that the killing is mitigated so as not to be murder but manslaughter. Our cases have traditionally recognized the distinction between mitigation and excuse in the law of homicide. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), and cases therein cited and discussed.
The error in the trial court’s instructions stems from the failure to recognize this difference between mitigation and excuse. The trial court instructed that malice was “that condition of mind that prompts a person to take the life of another intentionally .. . without just cause, excuse or justification.” This instruction, correct insofar as it goes, is incomplete. The trial court should have added “and without mitigation.”
Failure to include circumstances in mitigation as capable of rebutting malice, in effect, precluded the jury from considering at all defendant’s reasons for killing his father on the issue of whether he acted with malice. The instructions were that only matters which excused the killing altogether were sufficient to rebut the element of malice! The trial court then told the jury that defendant’s reasons for killing his father would not excuse the killing, saying,
*201 I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death.
Although the trial court followed this immediately with, “But you may consider such belief in determining whether the killing was done with malice,” he gave the jury no theory by which the circumstances might in law rebut the inference of malice which arose from the intentional killing with a deadly weapon. In essence this instruction was superfluous because the jury had already been told that only legal defenses, as opposed to circumstances in mitigation, could be considered on the issue of malice. At best the instructions were conflicting on the crucial element in the case. Ordinarily this kind of error calls for a new trial. State v. Parrish, 275 N.C. 69 , 165 S.E. 2d 230 (1969).
The jury’s confusion concerning the malice instructions is revealed by their three requests that the trial court repeat them and the trial court’s finally submitting them to the jury in writing.
For this error in the trial court’s instructions, I vote to give defendant a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9577513. Public record. Not legal advice.