# Appendix — Hankerson v. North Carolina > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0214%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 432 U.S. 233 ## Text APPENDIX Iu the Supreme Court of the Anited States OctoBer TERM, 1976 No. 75-6568 JOHNNIE B. HANKERSON, PETITIONER, Vv. STATE OF NorRTH CAROLINA, RESPONDENT ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA PETITION FOR CERTIORARI FILED APRIL 12, 1976 CERTIORARI GRANTED OCTOBER 4, 1976 Gu the Supreme Court of the Gnited States Ocroser TERM, 1976 No. 75-6568 JOHNNIE B. HANKERSON, PETITIONER, Vv. STATE OF NORTH CAROLINA, RESPONDENT ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA 224-112—-76—-_1 a Ms a hed ain bb eee eheeeneds Charge to the Jury in the Superior Court of Nash ST dé cheb beedenuebetenedseseksenachecacss Opinion of the Supreme Court of North Carolina, State v. Hankerson, 288 NC 632 (1975)..............05. Order of the Supreme Court of the United States Grant- ing Motion for Leave to Proceed in forma pauperis and Granting Petition for Writ of Certiorari............ am) 3 17 1 2 DOCKET ENTRIES 1. District Court of Nash County, North Carolina, Septem- ber 29, 1974, Warrant for Arrest of Petitioner charging him with the unlawful, willful, and felonious murder of Gregory Eugene Ashe with malice aforethought ci: the 29th day of September, 1974. . Superior Court of Nash County, North Carolina—On No- vember 20, 1974 Petitioner and his attorney W. O. Rosser waived the finding and returning into Court of a bill of indictment and agreed that the case be tried upon infor- mation alleging that on or about the 29th day of Septem- ber, 1974 in Nash County, Johnnie B. Hankerson unlaw- fully and willfully did feloniousy and with malice by the use of a deadiy weapon, to wit a pistol, kill and murder Gregory Eugene Ashe contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State. . Superior Court of Nash County, North Carolina—At the November 11, 1975, Session, upon his plea of not guilty, Petitioner was tried and convicted of Second Degree Mur- der. In the same Court on the 21st day of November, 1974 Presiding Judge John Webb ordered the Petitioner im- prisoned for the term of not less than twenty nor more than twenty-five years in the State’s Prison. Superior Court of Nash County, North Carolina—In apt time, Petitioner objected and excepted to the rulings and Judgment of the trial court and gave Notice of Appeal to the North Carolina Court of Appeals with further notice being waived on November 21, 1974. . Superior Court of Nash County, North Carolina—Order of Assignment of Counsel, W. O. Rosser and L. G. Diedrick to appeal Petitioner’s case to the appellate courts of North Carolina, November 21, 1974. 6. North Carolina Court of Appeals, May 29, 1975— Oral argument on Petitioner’s appeal. (1) “J 10. 11. 12. 13. 14. 2 . North Carolina Court of Appeals. July 16, 1975—Decision upholding the Judgment of the trial court, Arnold, J., dis- senting; decision certified July 28, 1975, reported in 26 NC App. 575, 2178. E. 2d 9 (1975). . Supreme Court of North Carolina, July 31, 1975—Peti- tioner filed Notice of Appeal from the North Carolina Court of Appeals to the Supreme Court of North Carolina as a matter of right pursuant to North Carolina General Statute 7A-30 (2). Supreme Court of North Carolina, August 19, 1975—Peti- tioner filed Motion to Amend the record to note additional Exceptions and Assignments of Error which would raise for review additional questions suggested by this Court in Mullaney vs. Wilbur, 421 US 684 (1975), decided June 9, 1975. Supreme Court of North Carolina, September 2, 1975— Petitioner’s Motion to Amend the Record to note addi- tional Exceptions and Assignments of Error allowed. Supreme Court of North Carolina, September 10, 1975— Oral argument on Petitioner’s appeal. Supreme Court of North Carolina, December 17, 1975— Decision filed denying Petitioner’s appeal, reported in 288 NC 632 (1975). Supreme Court of the United States—Petitioner’s Applica- tion for an Extension of Time In Which to File Petition for Writ of Certiorari allowed extending said time to April 15, 1976 by Order of Chief Justice Burger, dated March 12. 1976. Supreme Court of the United States, April 12, 1976, Peti- tion for Writ of Certiorari docketed. Supreme Court of the United States, October 4, 1976— Petitioner's Motion For Leave to Proceed In Forma Pau- peris and Petition for Writ of Certiorari granted. 3 Superior Court of Nash County Strate or Nortu CAROLINA v. JOHNNIE B. HANKERSON Charge to the Jury ; [Printed in the Case and Record on Appeal in the Supreme Court of North Carolina beginning at Page 52] Ladies and Gentlemen, you have now heard all the evidence in the case and the arguments of the lawyers, and it is now my duty to charge you as to the law that arises on the evidence, at the end of which time I will let you retire and render your verdict. This is a criminal action in which the defendant, Johnnie B. Hankerson, has been charged on an Information that he did commit second degree murder against Gregory Ashe. To this charge the defendant has pled not guilty, and the fact that he has been charged is no evidence that he is guilty. Under our system, when a person is charged with a crime and he pleads not guilty he does not have to prove that he is innocent, he is presumed to be innocent, and the burden of proof is on the State to prove beyond a reasonable doubt that he is guilty before you can find him guilty. When I speak of a reasonable doubt I don’t mean a vain, a fanciful or an imaginary doubt, but I do mean a sane or a rational doubt. If, after a consideration of all the evidence, you are fully satisfied or entirely convinced to a moral certainty that the defendant is guilty, then you would be satisfied be- yond a reasonable doubt. On the other hand, if you have any doubt based on reason and common sense, arising out of some or all the evidence that has been presented, or lack of evidence as the case may be, as to any fact necessary to constitute the guilt of the defendant, then you would have a reasonable doubt, and it would be your duty to give the defendant the benefit of that doubt and find him not guilty. I am going to recount for you some of the evidence that has been presented in the case but in doing so I want to instruct you (3) 4 I am not trying to tel! you what the evidence is or how I think you should find the facts from the evidence. Indeed, I have no opinion as to whether you should find the defendant 4 guilty or not guilty in this case. And if your recollection of the evidence differs from my recollection, it would be your duty to reject my recollection and use your own recollec- tion, because you are the sole triers of fact in this case. My sole purpose in recounting some of the evidence for you is so that I can apply the law that arises on the evidence. In this case the State has introduced first of all in the form of testimony by Lorenzo Donaid Dancy, who testified that he is sometimes called “Low,” that he is 18 years old and knew Gregory Ashe, that he was a close frienu of his. He testified that on September 29, 1974 he was with Gregory Ashe, that he had met him that night at a place is Whitakers, North Carolina, called Bandy’s Place; that he met him there some- time around 10:30 or 11:00 o’clock P.M., and that Bandy’s was mostly a dance hall, and that “Greg,” as he called the deceased was with Wilbert Whitley and that they stayed there at Bandy’s about 25 minutes; that he does not know Johnnie Hankerson and did not see him that night; that he does know that Johnnie Hankerson drives a black and yellow Plymovth automobile. That he, Wilbert and Greg Ashe left Bandy’s in Greg’s automobile, that they were going to a club and stopped by a poolroom on the way, that they got out of the car, the pool- room was locked and they couldn’t get in, and that they went back to Greg’s car and Gregory Ashe couldn’t get the car started, so all of three of them got out and started down a path and he was on his way home; that Greg Ashe was walking with them and then he, Gregory Ashe, turned and went back to his car, and they walked a little way and then when they hadn’t walked very far Wilbert was in front of him and he heard a shot and that he heard Gregory Ashe holler that he had been shot. That he then ran back to where he heard the shot from and he saw a yellow and black Plymouth Satellite pull off, that it went through an intersection at a fast rate of speed and drove out to Highway 301 and turned on the highway and left. That he ran to Alfonse Bellamy’s girl friend’s house and that he went inside; that first of all he called Wilbert’s home from Alfonse 5 Bellamy’s girl friend’s house but he didn’t answer so then he went to the store and found Wilbert and then they went back to look for Greg; that at first they couldn’t find i) him but then they found him lying in a field flat on his face, that some man who was there with them felt him to see if he was still alive, and that about that time Gregory’s mother ar- rived and the police arrived, and that when they found Gregory Ashe’s body he had a cigarette in his hand that had been lit, and that Gregory Ashe’s mother took the cigarette. He testified that he had never seen Gregory Ashe with a knife like the one introduced in evidence as one of the exhibits in this case. That he did hear Gregory Ashe ask for a light just before he left him that night and no one had a light, and that when they found his body the cigarette had been lighted but it had gone out. The State then introduced evidence in the form of testimony by Wilbert Whitley, who testified that he is 24 years old, that he lives in Witakers, North Carolina, that he knew Gregory Ashe before Gregory Ashe died; that he had never seen Gregory Ashe with a knife like the one introduced in evidence; that he got up with Gregory Ashe that night at his own home, that is, at Wilbert Whitley’s home, and they went to the “Cut” and the first place they went was to Robert Earl Bandy’s in the “Cut,” which is part of Whitakers, North Carolina; that Wil- bert Whitley had not had anything to drink that night and he could not tell if Gregory Ashe had; that they left Bandy’s Place and went to a poolroom; that he saw the defendant that night at the “Cut”; that when they left Bandy’s that Lorenzo Dancy went with them, that they first of all went to a pool- room which was closed and when they cut the car off Greg couldn’t get the car started when they started to leave the pool- room and that Wilbert Whitley told them that he was going on home and that he walked on across the intersection and while he was walking towards the intersection he saw a car light coming from behind him and that there was nothing un- usual about it, that he heard a gun go off, that he turned and looked back and a yellow and black automobile was taking off and cutting the corner and went out onto 301 and drove 6 off, and that it was a yellow and black Satellite, and that he heard Lorenzo Dancy yell that Greg said he was shot; that he ran back but they couldn’t find Greg; that they then went to Evans Store and got some help and then they went back and Lorenzo Dancy came up with Alfonse Bellamy and that they found the body after hunting for it for about half an hour; that he stayed there until about 4:00 A.M. himself. That earlier that night Gregory Ashe had asked for a match but no one had 224-112—76—2 6 one; that Gregory Ashe had a cigarette when they did find his body and the cigarette had been lit. The State then introduced evidence in the form of testimony by Alfonse William Bellamy, who testified that he lives in the “Cut” in Whitakers, North Carolina, and that he knew Gregory Ashe like a brother, that he had known him for about one year, and he knew Gregory Ashe would never carry a knife like the one introduced into evidence because it slips from the hand too easily. That on the night of September 29, 1974, “Low” came and told him that Greg had been shot, and that he went to the place where he said he had been shot and that he got in Greg’s car, that he knew how to start it, and after he was able to start it he turned around and after some searching they turned the lights into a certain direction and Gregory Ashe’s body was under the headlights; that Gregory Ashe was lying on his face, or the body of Gregory Ashe was, and that when they turned him over that he had a cigarette in his hand; that everyone including Gregory Ashe’s mother arrived at about the same time. The State then introduced evidence in the form of testimony by Etheline Lyons, who testified that she was the mother of Gregory Ashe and she lives in Bloomer Hill in Whitakers, North Carolina; that at about 11:00 o’clock P.M. that night she heard Gregory Ashe talking and then she heard his automobile start, and that about 30 minutes later someone knocked on the door and told her that her son had been shot; that she went out looking for him and after looking for him for a while they found his body on Bloomer Hill lying facedown, and when they turned him over he had a cigarette in his hand. The State then introduced evidence in the form of testimony by M. M. Reams, who testified that he is a deputy sheriff with the Nash County Sheriff’s Department; that he received 7 a radio message at about 12:05 A.M. on September 29, 1974; that he went to Bloomer Hill in Whitakers, North Carolina, that night and when he arrived there he saw the body of Gregory Ashe and he was lying facedown; that at about that time he received a call and he left the scene and went to Battle- boro and met a State Trooper and Lorenzo Dancy; that after taking a statement from Dancy he checked on the registration of the Satellite Plymouth and it belonged to the defendant; that he then drove to the defendant’s home, he advised him of his rights, and the defendant told him that he had shot at a Te ge ee 7 person but he didn’t know whether he had hit him or not, and he said that Mr. Hankerson told him that this person he had shot at had grabbed him and tried to cut his throat; that he did observe some blood on the automobile on the driver’s side. Mr. Reams testified that after searching the car he found a knife in the car that had some wood on it, and that the defendant showed him a greasy spot on his sweater where he said a boy had grabbed him; that Mr. Hankerson told him that he was in the process of buying the gun that he had used and that he had returned it to the person he was buying it from, and that was the only statement he made to him about the gun; that he then brought the defendant to Nashville and placed him in the Nash County Jail and went back to the scene in Whitakers where they had found the body and continued his investigation. Mr. Reams testified on cross-examination that Johnnie Hank- erson had told him that someone had tried to rob him, that he was in his automobile that night and that someone had asked for a light and he stopped the car and reached over and pushed the cigarette lighter in and then handed the cigarette lighter to the person who had asked for it, and when he put the cigarette lighter back that the man had a knife at his throat and that he had a gun on the seat beside him and he picked up the gun and fired and didn’t know whether he had hit him or not. That is some of the evidence for the State in the case. The defendant has introduced evidence. He, first of all testified in his own behalf, and he testified that his name is Johnnie Hank- erson, that he lives in Battleboro, North Carolina, that he is 53 years old, that he now works for Koppers Lumber Company, and that he worked for 11 years when he first came to Whitakers from Elizabeth City for Stinson Lumber Company, then he went to Tennessee for six months, then he came back to 8 Batt.eboro and has worked there since that time, or has worked in North Carolina since that time. The he was in Whitakers on the night of September 29, 1974; that he went there by himself, that he first went to Bandy’s, left there and then he went to the trailer of “Big Mama” and that he stayed there for about five minutes, that he left “Big Mama’s” trailer and he started driving back towards Highway 301; that there were some water holes in the road and he was driving slowly and he heard someone ask for a light; that he stopped his car and put his car cigarette lighter in and that he saw two people there and that when he got the lighter out and gave the person 8 a light and when he put it back in where it was supposed to go that the person standing on the driver’s side of the car grabbed him and he had a knife and he put the knife to his throat and that he reached down and picked up a gun that he had on the | seat and fired, and then he drove off and drove home and went in the house and told his wife what had happened; that he didn’t even look at his automobile when he got home, that he was so frightened. And he testified that the knife introduced into evidence in this case was not his knife, and that he told his wife and son what happened that night, and that the pistol introduced into evidence was one which he was in the process of buying and that the pistol was in his house when the law came but he did not tell the deputy sheriff that the pistol was there; that at that time he didn’t know whether he had hit the man he had shot at or not, that he didn’t know until after the officers told him. He testified on cross-examination that he shot two men before and each time in self-defense, that he has been convicted of whiskey some 20 years ago, and that he was convicted of escaping from prison about 40 years ago. He testified on redi- rect examination that he was protecting himself when he killed Gregory Ashe. The defendant then introduced evidence in the form of testi- mony by Annie Hankerson, who testified that she is the wife of Johnnie Hankerson and has been for 35 or 40 years, that they have six children, that four of them are in the 9 courtroom with them today; that Johnnie Hankerson never goes out of the house with soiled clothes on and that the jacket which was introduced into evidence was clean when he left the house that night; that the defendant came in that night after having left and said, “Where is Mama?” and that he talked to her and told her that he stopped to give some- one a light and when he did that the boy was reaching around him with a knife and that he shot, he didn’t know whether he shot him but he shot at him, and he said maybe he ought tu go back and tell the law, but he said, “If I shot someone, the law will be here and let me know about it.” That she heard him tell her son W. B. about it also. On cross-examination she testi- fied that she had been working that day and when he left the house that night he went to see someone about a hat, that the hard hat he was wearing didn’t fit him right and he wanted another one, and that he was gciie about two hours. 9 The defendant then introduced evidence in the form of testi- mony by Webster Hankerson, who testified that he is the son of the defendant, that he saw him when he went to his father’s house that night, that his father came in and told him he had shot someone, and his father then left the room and went and talked to his mother; that his father as he went back with his mother told Webster Hankerson that if the law came to let him know. That sometime later the Sheriff came to the house and he went and got his mother and got his father. He testified that his father told him that he had shot at someone but did not know if he had hit him. The defendant then introduced evidence in the form of testi- mony by Sonny Warner, who testified that he lives in Golds- boro, North Carolina, that he has known the defendant since 1965 and that he has a good general character and reputation in the community in which he lives. The defendant then introduced evidence in the form of testi- mony by W. H. Needham of Rocky Mount, North Caro- 10 lina, who testified that he has known the defendant since 1965 and that the defendant has a good character and reputation. The defendant also introduced evidence in the form of testi- mony by Jerry Bullock, who testified that he has known the defendant eight to ten years and that he has a good character and reputation. That is some of the evidence as presented in the case. As I told you, you will recall what all the evidence is and you will recall what all the evidence is and you will decide the facts of the case from the evidence. I charge you that under the law and evidence in this case it is your_duty to return one of the following three verdicts. You must either find the defendant guilty of second degree murder or guilty of voluntary manslaughter or not guilty. I charge that for you to find the defendant guilty of second degree murder, the State must prove two things beyond a rea- sonable doubt, first, that the defendant intentionally and with- out justification or excuse and with malice shot Gregory Ashe with a deadly weapon. Malice is not only hatred, ill-will or spite, as it is ordinarily understood, to be sure that is malice, but it always means that condition of mind which prompts a person to take the life of another intentionally or to inten- tionally inflict a wound with a deadly weapon upon another 10 which proximately results in his death without just cause, excuse or justification. A pistol, a .38 caliber pistol a pistol would be a deadly weapon. The second thing the State must prove and prove to you beyond a reasonable doubt is that the shooting was the proximate cause of Gregory Ashe’s death. A proximate cause is a real cause, a cause without which Gregory Ashe’s death would not have occurred. As I recall the evidence, both the State and the defendant stipulated that the death was caused by cerebral hemorrhage which resuled from a bullet wound in the deceased’s heart. Nevertheless, you will have to be satisfied from the evidence and beyond a reasonable doubt that this shooting was the proximate cause of Gregory Ashe’s death before you can find the defendant guilty in this case. If the State proves beyond a reasonable doubt or it is ad- mitted that the defendant intentionally killed Gregory 11 Ashe with a deadly weapon, or intentionally inflicted a wound upon Gregory Ashe with a deadly weapon, that proximately caused his death, the law raises two presumptions; first, that the killing was unlawful, and second, that it was done with malice. Then, nothing else appearing the defendant would be guilty of second degree murder. In other words, if you are satisfied from the evidence and beyond a reasonable doubt that the defendant intentionally killed Gregory Ashe with a deadly weapon, or that he intentionally inflicted a wound on Gregory Ashe with a deadly weapon and that wound proxi- mately caused Gregory Ashe’s death, then, as I told you, the law would raise two presumptions, that the killing was unlaw- ful and second, that it was done with malice. Then there will be some other things I will charge you about, but, nothing else appearing, if you are satisfied of those two things beyond a reasonable doubt then you would find the defendant guilty of second degree murder. As I told you, you will have to either find the defendant guilty of second degree murder or manslaughter or not guilty. In order to reduce the crime from second degree murder to manslaughter, the defendant must prove not beyond a reason- able doubt but simply to your satisfaction that there was no malice on his part. And in order to excuse his act altogether on the grounds of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense. And I will charge you on self-defense in just a moment. But I do want to charge you that to negate a A eR ee EOE Ee ee ar 11 malice and thereby reduce the crime to manslaughter, the defendant must satisfy you of three things: first, that he shot Gregory Ashe in the heat of a passion, and this does not mean mere anger, it means that the defendant’s state of mind was at the time so violent as to overcome his reason, so much so that he could not think to the extent necessary to form a deliberate purpose and control his actions. The second thing he must sat- isfy you of is that this passion was provoked by acts of Gregory Ashe which the law regards as adequate provocation. This may consist of anything which has a natural tendency to pro- duce such passion in a person of average mind and dis- 12 position. And thirdly, that the shooting took place so soon after the provocation that the passion of a person of average mind and disposition would not have cooled. To excuse the killing entirely on the grounds of self-defense, and the defendant contends that if you are satisfied beyond a reasonable doubt that he intentionally shot Gregory Ashe thereby proximately causing his death that he is excused in this case because he was acting in self-defense, and I want to instruct you that to excuse this killing entirely on the grounds of self-defense the defendant must satisfy you of four things: first, that it appeared to the defendant and he believed it to be necessary to shoot Gregory Ashe in order to save himself from death or great bodily harm. The defendant testified that at the time he shot Gregory Ashe or shot at Gregory Ashe that Gregory Ashe was holding a knife at his throat and had his arm around him, and he contends that that should satisfy you that he believed it was necessary to shoot him in order to save him- self from death or great bodily harm. The second thing that you must be satisfied of—excuse me—that the defendant must satisfy you of is this, that the circumstances as they appeared to him at the time were sufficient to create such belief in the mind of a person of ordinary firmness, and 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. In making this determination you should consider the circum- stances as you find them to have existed from the evidence, including the size, age and strength of the defendant as com- pared to Gregory Ashe, the fierceness of the assault, if any, upon the defendant, whether or not Gregory Ashe had a weapon in his possession. And the third thing the defendant must satisfy you of is that he was not the aggressor. If he 12 voluntarily and without provocation entered into a fight with Gregory Ashe, he was the aggressor, unless he thereafter at- tempted to abandon the fight and gave notice to Gregory Ashe that he was doing so. One enters a fight voluntarily if he uses towards his opponent abusive language which considering all the circumstances is calculated and intended to bring on a fight. And the fourth thing that the defendant must satisfy you of is that he did not use excessive force, that is, more force 13 than reasonably appeared to be necessary to the defend- ant at the time. Again, it is for you, the jury, to deter- mine the reasonableness of the force used by the defendant under all the circumstances as they appeared to him at the time. If you find that the defendant acted properly in self-defense, he would not be guilty. However, if the defendant though other- wise acting in self-defense used excessive force, the defendant would be guilty of voluntary manslaughter. In this case the defendant has introduced evidence that he is a man of good character and reputation. I won’t recount all of that again for you but you will recall the witnesses who testified that the defendant was a man of good character and reputation. I want to charge you that you can consider this evidence in two ways, or you may consider it for two purposes. First, if you believe all or any part of this evidence and find that it bears upon the defendant’s truthfulness, you may consider it together with all other facts or circumstances bearing upon his truth- fulness in deciding whether you will believe or disbelieve his testimony at this trial. And secondly, you may consider this evidence, although good character or good reputation is not an excuse for crime, the law recognizes that a person of good char- acter may be less likely to commit a crime than one who lacks that character. Therefore, if you believe from the evidence that the defendant has a good character, you may consider this fact in your determination of the d-fendant’s guilt or innocence and give it such weight as you decide it should receive in con- nection with all of the other evidence. There is also some evi- dence in this case, and I won’t recount all of that again for you, that the defendant some years ago has pled gui’*y to some other crimes. He testified that he had once been convicted of escape and once he was convicted of assault, and you will recall the things he said he had been convicted for. I want .o charee you that you may consider that evidence in one way onlv #»~ «iat is considering the nature of the crimes 13 which the defendant testified he had been convicted of 14 or pled guilty to, if you think that that bears upon his truthfulness then you may take that into account in deciding whether you believe or disbelieve him as a witness. But you may not consider that evidence in determining the guilt of the defendant in this case; that is, do not find him guilty in this case because he has pled guilty to another crime or been found guilty of another crime at another time. The State contends that the defendant ran from the scene that night or drove away from the scene that night and did not return, did not report it to the police, and the State con- tends that that is evidence of flight by the defendant. Evidence of flight, if you believe that evidence, may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a conseiousness of guilt. However, proof of this circumstance is not suffieient, in itself, to establish the defendant’s guilt. So if you believe the evidence of flight, I want to instruct you not to find the defendant guilty on that evidence alone; you will have to consider that together with all other evidence in the case in determining whether the State has satisfied you beyond a reasonable doubt that the defendant is guilty of either of the two crimes of which you may find him guilty, if you do not find him not guilty. COURT: Is there anything else you want charged, Mr. Rosser? MR. ROSSER: No, sir. So I charge you, Ladies and Gentlemen, if you find from the evidence and beyond a reasonable doubt that on or about September 29, 1974, the defendant, Johnnie B. Hankerson, in- tentionally and with malice and without justification or excuse, shot Gregorv Ashe with a deadly weapon, thereby proximately causing Gregory Ashe’s death, nothing else appearing, it would be your duty to return a verdict of guilty of second degree murder. However, if you do not so find, or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of second degree mureler. 15 If you do not find the defendant guilty of second de- gree murder, you must consider whether he is guilty of voluntary manslaughter. And if you find from the evidence beyond a reasonable doubt that on or ahout September 29, 1974, the defendant, Johnnie B. Hankerson, intentionally shot 224-112—76——3 14 Gregory Ashe with a deadly weapon, thereby proximately causing Gregory Ashe’s death, but are satisfied that the defend- ant killed without malice in the heat of sudden passion, nothing else appearing, or used excessive force in exercising the right of self-defense, it would be your duty to return a verdict of guilty of voluntary manslaughter. However, if you do not find, or have a reasonable doubt as to one or more of these things, you would find the defendant not guilty. I will let you retire in just a moment. I suggest that when you do retire you appoint one of your members a foremai so that he or she could poll you in the jury room and speak for you when you return. You will have to reach a unanimous verdict before you can find the defendant either guilty of second degree murder or manslaughter or not guilty. If you want any further instructions, you are entitled to have them. However, you will all have to come back to the court- room to get them; you can’t send one person back to get them for you and you can’t get the deputy sheriff to get them for you. So at this time I instruct you, Ladies and Gentlemen, to retire to your room and render a true and just verdict. (JURY RETIRES AT 3:43 O'CLOCK P.M.) (JURY RETURNS TO THE COURTROOM FOR FUR- THER INSTRUCTIONS AT 4:32 O'CLOCK P.M. AND THE FOLLOWING PROCEEDINGS ARE HAD.) CLERK: Ladies and Gentlemen of the Jury, have you agreed upon your verdict? JURY FOREMAN: No. We would like to have the Judge to clarify again the difference between manslaughter and second degree murder. COURT: All right. Excuse me. I thought you had reached a verdict. Second degree murder is the intentional killing with- out justification or excuse and with malice. Voluntary man- slaughter is the intentional killing without justification and excuse and without malice. In other words, the difference be- tween second degree murder and manslaughter is the absence of malice in manslaughter. I defined malice for you. I 16 will be glad to define it for you again if you want me to. Also, i want to instruct you that the charge I gave you as to self-defense would apply equally to manslaughter as it would to second degree murder in that if you find the defend- ant was justified or excused in the killing because he was acting 15 in self-defense then you would find him not guilty as to either one. I explained to you a little bit more maybe than you asked, but I thought you needed that clarified, perhaps. Is that enough explanation or would you like further explanation? Well, I will define malice for you. The difference between second degree murder and manslaughter, as I told you, is that it is not necessary for the State to prove malice in order for you to find him guilty of manslaughter. As [ told you before, malice is not only hatred, ill-will or spite, as it is ordinarily understood, to be sure that is malice, but it also means that condition of mind which prompts a person to take the life of another intentionally, or to intentionally inflict a wound with a deadly weapon upon another which proximately causes his death without just cause, excuse or justification. That is the legal definition of malice. Unless you want further instructions, I will let you retire and resume your deliberations. If you want any further in- structions. don’t hesitate to come out and ask for them. 17 SUPREME COURT OF NORTH CAROLINA STATE OF NORTH CAROLINA v. JOHNNIE B. HANKERSON No. 56 (Filed 17 December 1975) 1. Criminal Law § 90— State’s introduction of exculpatory statements by defendant The State is not bound by the exculpatory portions of a confession which it introduces in a homicide case if there is other evidence tending to throw a different light on the cir- cumstances of the homicide. 2. Homicide § 2'— second degree murder—exculpatory state- ments—sufficiency of evidence for jury The State’s evidence was sufficient for the jury in this prosecution for second degree murder, notwithstanding the State introduced exculpatory statements by defendant that he shot the victim while the victim was reaching into de- fendant’s car with a knife at defendant’s throat and a hand on his chest, where the State’s evidence cast doubt on de- fendant’s version by tending to show that (1) defendant fled the scene at a great rate of speed; (2) defendant originally lied about the gun used in the shooting and told the truth about it after his wife turned it in to the police; (3) deceased had no grease on his hands although defendant claimed a grease spot on his shirt was from being grabbed by the victim; (4) the victim was found with a cigarette in one hand although defendant contended the victim used two hands against him; (5) the victim was right handed and defendant claimed the victim wielded the knife with his left hand; (6) defendant said he was stopped by two persons while the State’s evidence was that the victim was alone; and (7) the victim had never been seen with a knife similar to one recovered from defendant’s vehicle. (16) 17 3. Criminal Law § 86— prior misconduct — question is good faith Defendant failed to show that the district attorney’s question to him on cross-examination as to how many peo- ple he had shot before was asked in bad faith. 4, Criminal Law § 162—failure to strike testimony—absence motion to strike The trial court did not err in failing to strike defendant’s testimony regarding prior arrests which did not result in conviction where there was no motion to strike such testimony. 18 5. Criminal Law § 113—recapitulation of evidence— misstatement—collateral matter The trial court’s inaccurate statement during recapitula- tion of the evidence in a homicide case that defendant testi- fied he had been convicted of assault was a misstatement upon a collateral matter and not a ground for a new trial since no request for correction was made before the case was submitted to the jury. 6. Homicide § 28— final mandate — absence of acquittal by self-defense — additional instructions In this homicide prosecution, the trial court’s error in fail- ing to include in its final mandate the theory of acquittal by reason of self-defense was cured by additional instructions given by the court after the jury had begun its deliberations. 7. Homicide §§ 14, 24— absence of malice — self-defense — burden of proof on defendant — unconstitutionality — non- retroactivity Under the decision of Mullaney v. Wilbur, 421 U.S. 684 (1975), the Due Process Clause of the Fourteenth Amend- ment prehibits the use of our long-standing rules in homi- cide cases that, in order to rebut the presumption of malice, defendant must prove to the satisfaction of the jury that he killed in the heat of a sudden passion, and in order to rebut the presumption of unlawfulness, defendant must prove to the satisfaction of the jury that he killed in self-defense. However, the Mullaney decision is not retroactive and ap- plies only to trials conducted on or after 9 June 1975. 8. Homicide §§ 14, 24— presumption of malice and unlawful- ness — constitutionality The Mullaney decision does not preclude use of the pre- sumptions of malice and unlawfulness upon proof beyond 18 a reasonable doubt of a killing by the intentional use of a deadly weapon; nor does it prohibit making the presump- tions mandatory in the absence of contrary evidence or per- mitting the logical inferences from facts proved to remain and be weighed against contrary evidence if it is produced. Justice LAKE concurring in result. Appga. by defendant pursuant to N. C. Gen. Stat. 7A-30(2) to review the decision of the Court of Appeals reported in 26 N.C. App. 575, 217 S.E. 2d 9 (1975), which found no error, Arnold J., dissenting, in the trial before Webb, J., at the No- vember 21, 1974 Session of Nasu County Superior Court. After the appeal was filed in this Court on July 31, 1975, defendant moved to amend the record on August 19, 1975, to note additional exceptions and assignments of error which would raise for review additional questions suggested by Mul- laney v. Wilbur, 421 U.S. 684, decided on June 9, 1975. This mo- tion was allowed on September 2, 1975, and the case argued on September 10, 1975. 19 Defendant was charged with the second degree murder of Gregory Ashe and entered a plea of not guilty. It was stipulated that had Dr. D. E. Scarborough, who performed the postmortem examination, been present at trial he would have testified that Gregory Ashe died on September 29, 1974, as a result of massive hemorrhage resulting from a gunshot wound to the heart. Evidence for the State tended to show that on the night of September 29, 1974, Lorenzo Dancy, Wilbert Whitley, and the deceased, Gregory Ashe, left a dance hall and drove to a pool- room in Whitakers. Ashe was driving his car. Upon arrival at the poolroom, they discovered that it was closed. Ashe was un- able then to restart his car. Ashe asked Dancy and Whitley for a match to light a cigarette. Neither had a match. Whitley an- nounced that he was going to his home, one block away, and began walking. Dancy and Ashe were also walking away from the car when Ashe said that he was going back to “crank” the car. Dancy indicated that he was going on with Whitley. Dancy testified that he yelled for Whitley to wait and then proceeded to walk after Whitley. When last seen alive by Dancy, Ashe was seen walking alone back towards his car. Moments later Dancy and Whitley each heard a gun fire. Dancy heard Ashe exclaim that he was shot and hollered this information to Whitley. A yellow and black Plymouth “Satel- 19 lite” was observed pulling away at a fast rate of speed. It did not stop when it reached the nearby intersection of U.S. 301. Dancy and Whitley had differing accounts of whether the car left before or after Dancy hollered. The shooting had occurred some time after 11:00 o 'elock. Because of the darkness it was difficult to find Ashe. Around 12:00 o’clock, Ashe was discovered lying face down in a field about thirty feet from the road. A cigarette, which had been lit but which was now out, was in Ashe’s hand. The body was re- moved at 4:00 or 5:00 o’clock that morning. After determining the identity of the owner of the Plymouth, several law enforcement officers, including Deputy Sheriff M. M. Reams went to defendant’s home, advised defendant of his rights, and questioned him. Defendant told Deputy Reams that he had been to Whitakers, had shot a person who had grabbed him and tried to cut his throat but did not know whether he had hit him. Reams testified that defendant’s car was 20 searched with his consent and a knife was found in the middle of the front seat. Also found in the car was a “ 30-06,” ammunition for the “.30—-06,” and a hunting knife. Blood was observed on the driver’s side of the car, just behind the door. Defendant gave Reams a shirt with a grease spot and stated that was where he had been grabbed. When asked about the pistol used in the shooting (not the “.30—-06’), defendant told Reams that he was “in the process of buying” it but had already returned it to the seller, whom he refused to identify. On cross-examination Reams gave this additional account of defendant’s statements: Defendant was driving his Plymouth “Satellite” automobile near the poolroom when a man stopped him and asked him for a light. Defendant gave the man the cigarette lighter from the dash of his automobile. Defendant felt someone “shaking the car, shaking the right door that was locked.” Defendant put the cigarette lighter back in the holder and when he turned around “the man” was reaching in with a knife at his throat and had a hand on defendant’s chest. De- fendant reached down, got a revolver, and “shot the man who already had his hand on his left chest.” Officer Reams also testified that after taking defendant’s statement he returned to the morgue and examined the de- ceased’s hands. He found no grease on them. Several witnesses for the State testified that they had never seen the deceased with a knife like the one in evidence found in defendant’s car. . 20 Defendant testified giving the following account of the inci- dent: He was driving his Plymouth automobile slowly over a road containing large holes when someone asked for a light. Through his car mirror, defendant could see two men. One of them walked up to the car and defendant reached over to the dash of the car, pushed in the cigarette lighter, and gave the lighter to him. On returning the lighter to its holder, defendant felt the car move, and looked and noticed the second man stand- ing on the right-hand side of the car. As he turned back to his left, the first man reached into his car, seized him by the left shoulder with his right hand and put a knife to defendant’s throat with his left hand. Defendant felt the knife at his throat, grabbed his gun and shot. He surmised that his assailant dropped his knife in the car since it did not belong to 21 the defendant. Defendant admitted that he lied to the police about the whereabouts of the gun: He said: “The pistol was in my house at the time the law came there. He did ask me for the pistol then. I told him I had returned it to the person I got it from. I had not returned it. It was in the house right then. “The reason I didn’t tell the Sheriff the truth about where the piste! was was because at that time I just wasn’t thinking, but after I got up here in jail I decided I might as well go ahead and tell them. My wife had already given it to the officers at that time. It is true that I never told them where the pistol was. If they had wanted to search the house they could have found it right there under the mattress. I did not hide the gun. That was just to keep it away from the children.” Defendant’s wife, however, testified that she got the pistol from defendant’s drawer where “I am sure he put it.” In rebuttal the State introduced evideiice that Gregory Ashe was right-handed. The jury found defendant guilty of second degree murder. He was sentenced to not less than 20 nor more than 25 years imprisonment. The Court of Appeals found no error, Arnold, J., dissenting. Rufus L. Edmisten, Attorney General, by Claude W. Har- ris, Assistant Attorney General, for the State. L. G. Diedrick, W.O. Rosser and Roland Braswell, Attorneys for defendant appellant. EXUM, Justice. 21 I ‘Defendant assigns as error the denial of his motions for judgment as of nonsuit. Judge Arnold’s dissent was on the basis that nonsuit should have been allowed. Reviewing this assignment, we consider all of the evidence actually admitted, whether from the State or defendant, in the light most favorable to the State, resolve any contradictions and discrepancies there- in in the State’s favor, and give the State the benefit of all rea- sonable inferences from the evidence. State v. Cutler, 22 271 N.C. 379, 382, 156 S.E. 2d 679, 681 (1967). Defendant more specifically urges that this case comes within the rule that, “[w]hen the State introduces in evidence exculpa- tory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by these statements. While the intentional killing of another with a deadly weapon raises the presumption that the killing was unlawful and done with malice, this rule of law does not mean that the burden of show- ing an unlawful killing does not rest with the State. When the State’s evidence and that of the defendant are to the same effect and tend only to exculpate the defendant, motion for honsuit should be allowed. State v. Carter, 254 N.C. 475, 119 S.E. 2d 461.” State v. Johnson, 261 N.C. 727, 730, 136 S.E. 2d 84, 86 (1964). In State v. Johnson, supra, a murder prosecution, the State’ s only evidence that defendant committed a homicide was a confession that established a perfect self-defense. Circum- stantial evidence corroborated the confession. Defendant’s evi- dence at trial was to the same effect. In this context we held defendant entitled to a nonsuit and reversed a conviction for manslaughter. State v. Carter, supra, presented basically the same situation. There was no evidence which tended to contra- dict or impeach defendant’s confession or testimony at trial that she acted lawfully in the defense of another. 11} The State contends, however, and we agree that this case falls more squarely within the rule that the State is not bound by the exculpatory portions of a confession which it introduces, if there is “other evidence tending to throw a different light on the circumstances of the homicide.” State v. Bright, 237 N.C. 475, 477, 75 S.E. 2d 407, 408 (1953); see also State v. Bolin, 281 N.C. 415, 189 S.E. 2d 235 (1972) and State v. Cooper, 273 N.C, 51, 159 S.E. 2d 305 (1968). In State v. Bright, supra, 224-112—76——_-4 22 the State introduced defendant's statement that he killed his” wife accidentally while they were scuffing on the bed. We held, however, that evidence “such as the absence of powder burns, the location and direction of the fatal wound [and] the conduet of the defendant . . .” was sufficient to survive a mo- tion for nonsuit, and we affirmed a manslaughter conviction. [2] We hold that nonsuit in this case was properly denied in view of evidence which casts doubt on defendant's version of the incident. This evidence is to the effeet that: (1) defendant fled the scene at a great rate of speed; (2) defendant 23 originally lied about the gun and deeided to tell the truth about it after his wife had turned it in to the police; (3) the deceased had no grease on his hands although defendant claimed the grease spot on his shirt was from being grabbed by the deceased; (4) the deceased was found with a cigarette in one hand, although defendant claims the deceased used two hands agains: him; (5) the deceased was right-handed although defendant claims that deceased wielded the knife with his left hand; (6) defendant says he was stopped by two persons while the State's evidence was that the deceased, when last seen alive moments before the shooting, was alone; (7) the deceased had never been seen with a knife in his possession similar to the one recovered from defendant's vehicle. While none of these circumstances taken individually flatly contradicts defendant's statement, taken together they are suf- ficient to “throw a different light on the circumstances of the homicide” and to impeach the defendant’s version of the inci- dent. The State is not bound, therefore, by the exculpatory por- tions of the defendant's statement. The case is for the jury. I] On cross-examination of the defendant by the district attor- ney the following occurred: “Q. How many people have you ever shot before? OBJECTION: OVERRULED: ExcEePTION DEFENDANT'S ExcEeEpTrion No. 3. Q. Go ahead and tell us exactly how many? A. I have shot one. Q. Is that all? A. Two. Q. Is that all? A. Yes.” As the cross-examination continued without further objection defendant admitted having been “convicted of whiskey” and “convicted one time of escaping from prison. . . I have not been convicted of anything else. I have been up once before in North Carolina for assault; this is the second time. That 24 was for shooting. It was in self-defense. I came clear of that.” On recross-examination the defendant testified: “T have not been previously convicted of assault. They kept me in jail three or four nights the time the man was hitting me with a stick. Years back a fellow whacked me with a knife and he was shot in the leg but I didn’t go to jail for it. [ just paid his hospital bill.” Apparently with reference to this testimony the trial judge, summarizing the evidence, stated to the jury that the defendant “testified that he had once been convicted of escape and once he was convicted of assault, and you will recall the things he said he had been convicted for.” Defendant now assigns as error: first, the overruling of his objection to the district attorney’s question, “How many people have you ever shot before?”; second, failure of the court to strike “defendant's testimony as to any prior arrests that did not result in a conviction”: and third, the statement of the trial judge hereinabove set out recapitulating the testimony of the defendant. (3) With regard to the district attorney’s question defendant properly coneedes the right of the State to cross-examine de- fendant as to specific acts of misconduct, State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972), and properly concedes that unlawfully shooting other people would be such misconduct. Defendant contends, however, that the question was patently asked in bad faith since the district attorney must have been aware that the defendant was acquitted of that charge. Defend- ant, however, testified that he had shot people on fwo other occasions only one of which resulted in an acquittal by reason of self-defunse. There is no showing in the record that the district attorney in fact knew the official outcome of these as- saults. Apparently one of them never came to trial. '4] As to the trial judge’s failure to strike defendant's testi- mony regarding prior arrests which did not result in convic- tions, suffice it to say there was no motion to strike any of this testimony. Apparently defendant was satisfied at trial with 24 his full explanation before the jury of the outcome of the two shooting incidents. The trial judge was not required, sua sponte, to strike this testimony. State v. Battle, 267 N.C. 513, 148 S.E. 2:4 599 (1966). [5] Although defendant admitted he paid hospital bills for one of his victims, he said also that he “didn't go to jail 25s for it” and that he had “not previously been convicted of assault.’’ The trial judge did, it seems, inaccurately recapitulate the defengant’s testimony on this point. The mis- statement is understal ~ Nevertheless “inaccurate state- ments of this character are not ground for a new trial unless called to the court's attention with request that correction be made before the case is submitted to the jury.” State v. Revis, 253 N.C. 50, 53. 116 S.E. 2d 171, 174 (1960). In State v. Can- trell, 230 N.C. 46, 51 S8.IE. 2d 887 (1949) relied on by defendant on this point, defendant was tried on a charge of carnally know- ing his ten year old child. In dictume this Court volunteered the observation that it would have been error for the trial judge to say, in recapitulating the evidence, that defendant “ad- mitted ... he had been tried and convicted of an assault with intent to commit rape on his daughter Dorline Shelton” unless such an admission appeared in the record. (It does not appear in the opinion but the record reveals that Dorline Shelton was not the prosecutrix, but another daughter of the defendant.) Noting that no exception was taken or assignment of error di- rected to this portion of the charge, this Court recognized that the defendant mav indeed have made such an admission al- though none appeared in the record. Assuming the correctness of this dictum, the supposed misstatement there considered is clearly distinguishable from the one here. In prosecutions for various kinds of illicit sexual activity, our decisions have been - characterized as being “markedly liberal in holding evidence of similar sex offenses admissible” on the question of guilt. 1 Stansbury’s North Carolina Evidence 299 ( Brandis Rev. 1973). It might then be considered that the assumed misstatement in Cantrell was one of a fact bearing directly on defendant's guilt. This Court has said that “a statement of a maierial fact not shown in the evidence constitutes reversible error’ whether or not called to the trial court’s attention. State v. McCoy, 236 N.C. 121, 124, 71 S.E. 2d 921, 923 (1952). The misstatement here complained of was clearly upon a collateral matter These assignments of error are, consequently, overruled. ——_ PR a ee ee 25 III [6] In his final mandate the trial judge failed to reiterate and specify that self-defense was a possible theory of acquittal. Defendant contends that under State v. Dooley, 285 N.C. 158, 203 S.E. 2d 815 (1974) this is reversible error. After the jury had been deliberating approximately forty-five minutes, 26 however, they returned to the courtroom to ask for clari- fication on the distinction between manslaughter and murder in the second degree. In the course of his instructions responsive to this inquiry the trial judge charged in addition as follows: “Also, I want to instruct you that the charge I gave you as to self-defense would apply equally to manslaughter as it would to second degree murder in that if you find the defendant was justified or excused in the killing be- cause he was acting in self-defense then you would find - him not guilty as to either one.” While Dooley does require the trial judge to include in his final mandate the theory of acquittal by reason of self-defense where it has been raised by the evidence, failure here to do so was cured, in our opinion, by the additional instructions. State v. Brooks, 225 N.C. 662, 36 S.E. 2d 238 (1945). Certainly the additional instructions render any error of omission in the final mandate harmless beyond a reasonable doubt. IV On June 9, 1975, the United States Supreme Court decided Mullaney v. Wilbur, 421 U.S. 684, which held that a Maine jury instruction requiring a defendant being tried for murder to prove by a preponderance of the evidence, in order to reduce the murder to manslaughter, that he acted in the heat of pas- sion on sudden provocation, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitu- tion, as that clause was interpreted in In re Winship, 397 U.S. 358 (1970) to require the prosecution to prove beyond a reason- able doubt every fact necessary to constitute a crime. It was subsequently re-explained in Faretta v. California, .... U.S. ...., 95 S.Ct. 2525, n. 15 (June 30, 1975) that the right of the defendant to have this burden placed on the State, though not literally expressed in any particular provision of the Consti- 26 tution, was essential to due process of law in a fair adversary process, Defendant contends that under the rationale of Mullaney the trial judge’s instructions to the jury in this case violate Fourteenth Amendment Due Process. While the trial judge in defining second degree murder and manslaughter and in his final mandate to the jury placed upon the State the burden to prove beyond a reasonable doubt both malice and 27 unlawfulness, i.e, without justification or excuse, he also instructed the jury, in pertinent part, as follows: “Tf the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed Greg- ory Ashe with a deadly weapon, or intentionally in- flicted a wound upon Gregory Ashe with a deadly weapon, that proximately caused his death, the law raises two presumptions; first, that the killing was unlawful, and second, that it was done with malice. Then, nothing else appearing, the defendant would be guilty of second degree murder. . . . “As I told you, you will have to either find the defendant guilty of second degree murder or manslaughter or not guilty. In order to reduce the crime from second degree murder to manslaughter, tie defendant must prove not beyond a reasonable doubt but simply to your satisfac- tion that there was no malice on his part. And in order to excuse his act altogether on the grounds of sel!- defense, the defendant must prove not beyond a reason- able doubt but simply to your satisfaction that he acted in self-defense, And I will charge you on self-defense in just a moment. But I do want to charge you that to negate malice and thereby reduce the crime to man- slaughter, the defendant must satisfy you of three things: first, that he shot Gregory Ashe in the heat of a passion. . . . The second thing he must satisfy you of is that this passion was provoked by acts of Gregory Ashe which the law regards as adequate provoca- cation... . And thirdly, that the shooting took place so soon after the provocation that the passion of a person of average mind and disposition would not have cooled. 27 “T'o excuse the killing entirely on = — q -~ defense .. . the defendant must satijy you 0 cn first, that it appeared to the defendant and he believed it to be necessary to shoot Gregory Ashe in order to save himself from death or great bodily harm. . . . The second thing that you must be satisfied of—excuse me—that the defendant must satisfy you of this, that the circumstances as they appeared to him at the time were sufficient to create such belief in the mind of a person of ordinary firmness. . . . And the third thing the defendant must satisfy you of is that he was not the aggressor. . . . And the fourth thing that the defendant must satisfy you of is that he did not use excessive force... . 28 “If you find that the defendant acted properly in self-defense, he would not be guilty. However, if the defendant though otherwise acting in self-defense used excessive force, the defendant would be guilty of voluntary manslaughter.” (Emphasis supplied. ) [7] We hold that by reason of the decision in Mullaney the Due Process Clause of the Fourteenth Amendment prohibits the use of our long-standing rules in homicide cases that a de- fendant in order to rebut the presumption of malice must prove to the satisfaction of the jury that he killed in the heat of a sudden passion and to rebut the presumption of unlawfulness, that he killed in self-defense. The instructions given here inso- far as they placed these burdens of proof on the defendant vio- late the concept of due process announced for the first time in Mullaney. We decline, however, for reasons hereinafter stated, to give Mullaney retroactive effect in North Carolina. We hold that because the trial judge instructed the jury in accordance with our law of homicide as it stood, and in a trial conducted, before the Mullaney decision, the defendant is not entitled to the benefit of the fullaney doctrine. We will, however, apply the decision to all trials conducted on or after June 9, 1975. The law of Maine and the precise issue it presented was suc- cintly stated by the Supreme Court in Mullaney: iat “Absent justification or excuse, all intentional or crimi- nally reckless killings are felonious homicides. Felonious homicide is punished as murder—ie., by life imprison- ment—unless the defendant proves by a fair preponder- 28 ance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is pun- ished as manslaughter—i.e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. The issue is whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process.” 421 U.S. at 691- 92. (Emphasis supplied.) A portion of the trial judge’s instructions to the jury in Maine were summarized in Mullaney as follows: “(That if the prosecution established that the homi- cide was both intentional and unlawful, malice afore- thought wus to be conclusively implied unless the de- fendart proved by a fair preponderance of the 29 evidence that he acted in the heat of passion on sudden provocation. The court emphasized that ‘malice aforethought and heat of passion on sudden prov- ocation are inconsistent things.’ [Appendix to the Rec- ord] at 62; thus, by proving the latter the defendant would negate the former and reduce the homocide from murder to manslaughter. The court then concluded its charge with elaborate definitions of ‘heat of passion’ and ‘sudden provocation.’” Id. at 686-87. (Emphasis sup- plied.) Maine’s conclusive implication of malice which arose from proof of an unlawful and intentional killing meant simply that upon proof of these things the defendant was guilty of murder unless the defendant proved by a fair preponderance of the evi- dence that he acted in heat of passion on sudden provocation ~-where the issue of heat of passion was raised. Thus Maine’s law under these circumstances relieved the State of the bur- den of proving both malice and the absence of heat of passion. 2 a the Supreme Court found that due process was wanting. t sald: “Maine law requires a defendant to establish by a pre- ponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society 29 where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a mur- derer than to sentence a murderer for the lesser crime of manslaughter. Jn re Winship, 397 U.S. at 372 (concur- ring opinion). We therefore hold that the Due Process Clause requires the prosecution to prove beyond a rea- sonable doubt the absence of the heat of passion on sud- den provocation when the issue is properly presented in a homicide case.” Jd. at 703-704. In North Carolina, our law of homicide pertinent to the ques- tions here raised has not been substantially changed since it was enunciated in 1864 in State v. Ellick, 60 N.C. 450. This Court there said: “When it is proved that one has killed intentionally, with a deadly weapon, the burthen of showing justification, excuse or mitigation, is upon him. /d. at 459. _ * * oe * 30 “| the fact of the homicide must be proved by the State; but if found or admitted, the onus of showing justification, excuse or mitigation, is upon the prisoner.” Id. at 462. The Court in Ellick concluded its opinion by saying that any fact which the State is required to establish must be proved beyond a reasonable doubt; but as to faets which the prisoner is required to establish, the jury must be satisfied by the testi- mony that they are true. Zllick has been cited as authoritative in State v. Phillips, 264 N.C. 508, 515, 142 S.E. 2d 337, 341 (1965) and State v. Creech, 229 N.C. 662, 673, 51 S.E. 2d 348, 357 (1949). Another of our early cases on the subject was State v. Willis, 63 N.C. 26 (1868), which while holding that the defend- ant need not prove mitigation or justification by a preponder- ance of the evidence, nevertheless approved the following instruction given by the trial judge: “TW Jhen it is proved or admitted that one killed another intentionally, with a deadly weapon, the burden of show- ing justification, excuse or mitigation is on him, and all the circumstances of such justification, excuse or miti- gation are to be satisfactorily proved by him, unless they appear in the evidence against him; that the fact of killing being proved or admitted, nothing more 30 appearing, the law presumes such killing to have been done in malice, and so to be murder; that the circum- stances of justification, excuse or mitigation, are to be satisfactorily proved, not proved as the State is required to prove an essential fact, that is beyond a reasonable doubt, for the doctrine of reasonable doubt is never applied to the condemnation of a prisoner, but to his acquittal; and that the jury must be satisfied by the testimony offered in the case on either side that the matter in justification, excuse or mitigation is true.” Id. at 26-67. (Emphasis supplied. ) The Court said further: ‘WWe prefer to stand super antiquas vies, and to achere to the rules iaicd down in the Slate v. Eliwk, above referred to. In that case the erroneous statement which we had inadvertently made in the State v. Peter Johnson, [48 N.C. 266 (1855)] that it was incumbent on the prisoner to establish the matters of excuse or extenuation 31 beyond a reasonable doubt, is corrected. In it is also corrected wht we consider as erroneous in the decision of the Court in Commonwealth v. York [9 Met. (50 Mass.) 93 (1845)], that the matters of ex- cuse or extenuation which the prisoner is to prove, must be decided according to the preponderance of evidence. It is more correct to say, as we think, that they must be proved to the satisfaction of the jury.” Jd. at 29. In State v. Vann, 82 N.C. 631, 635 (1880), Justice Dillard, elucidating the law laid down in Ellick and Willis, wrote: “In an indictment for murder, the two constituents of the crime, to-wit, a voluntary killing and malice afore- thought, must be proved by the state, as it makes the charge; and as the accused is presumed to be innocent until the contrary is shown, both of these elements must be proved. The killing being shown, then the other in- gredient, malice prepense, is also proved as a fact in the eyes of the law, not by evidence adduced, but by a pre- sumption that the law makes from the fact of the killing. And these two essential facts being thus established, the legal conclusion thereon is, that the offense charged is murder. (Citations omitted.) 31 “But the implication of malice, made by the Jaw and taken as a fact, is not conclusive on the party accused, but may be rebutted. He may show, if he can, by his proofs, that there was no malice prepense and thereby extenuate to manslaughter, or make a case of justifiable or excusable homicide, or a case of no criminality at, all by proof of insanity at the time of the act committed, disabling him to know right from wrong. (Citations omitted.) The burden lies on the accused to make these proofs, if he can; otherwise, the conclusion of murder, on a malice implied, will continue against him and will call for, and in law, oblige a conviction by the jury.” (Emphasis supplied. ) In State v. Miller, 112 N.C. 878, 885, 17 S.E. 167, 169 (1893), the Court pointed out “that when the killing with a deadly weapon is proved and admitted the burden is shifted upon the prisoner, and he must satisfy the jury, if he ean do so from the whole of the testimony, as well that offered for the State as for the defense, that matter relied on to show mitiga- tion or excuse is true.” 32 These early cases were decided before the enactment of N.C. Pub. Laws 1893, ch. 85 (now N. C. Gen. Stat. 14-17), which divided murder in two degrees. This act made certain specified kinds of murder, including a deliberate anc premeditated killing. murder in the first degree. All other kinds of murder were made by the statute murder in the second degree. State v. Benton, 276 N.C. 641, 657, 174 S.E. 2d 793 (1970). Homicide cases decided subsequent to this statute con- tinued to sanction the presumptions of unlawfulness and malice but refused to reeugnize any presumption of premeditation or deliberation. State v. Brown, 249 N.C. 271, 106 S.E. 2d 232 (1958); State v. Absher, 226 N.C. 656, 40 S.E. 2d 26 (1946); State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899); State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894). Modern, accurate and sufticient statements of the rules regarding these presump'ions may he found in State v. DuBoise, 279 N.C. 73, 181 S.E. 2d 393 (1971); State v. Winford, 279 N.C. 58, 181 S.E. 2d 423 (1971). The foregoing authorities establish that from 1864 to 1975, 111 years, the law of this State has been this: when it estab- lished by a defendant’s judicial admission, or the State proves beyond a reasonable doubt that the defendant intentionally in- 32 flicted a wound upon the deceased with a deadly weapon which proximately caused death, the law raises two presumptions against the defendant: (1) the killing was unlawful, and (2) it was done with malice. Nothing else appearing in the case the defendant would be guilty of murder in the second degree. When these presumptions arise the burden devolves upon the defendant to prove to the satisfaction of the jury the legal pro- vocation which will rob the crime of malice and reduce it to manslaughter or which will excuse the killing altogether on the ground of self-defense. If defendant rebuts the presumption of malice only, the presumption that tue kil!'ng was unlawful re- mains, making the crime manslaughter. The jury instructions complained of here were in accordance with these long estab- lished rules. This Court has never defined precisely what is meant by “satisfying” the jury. It has been clear, however, from the ear- liest cases that satisfying the jury meant something other than persuading beyond a reasonable doubt and persuading by a preponderance of the evidence. State v. Freeman, 275 33 N.C. 662, 170 S.F.. 2d 461 (1969); State v. Barrett, 132 N.C. 1005, 43 S.E. 832 (1903). This Court said in Barrett: “TT he prisonei must satisfy the jury, neither by a rea- sonable doubt nor yet by a preponderance of the evi- dence, but simply satisfy them, of the existence of facts and circumstances which mitigate the offense or which make good a plea of self-defense.” Satisfying the jury, the standard long adopted by this Court and utilized in the instructions now under consideration means, we believe, a standard no greater and at the same time one not significantly less than persuasion by a preponderance of the evidence. Satisfying the jury means that there must be some evidence offered of all elements of heat of passion on sudden provocation or of self-defense, as the case may be, and that this evidence must satisfy or persuade the jury of the truth of the existence of these provocations—one which robs the crime of malice and the other which excuses it altogether. Under the Maine rules considered in Mullaney when the State proved beyond a reasonable doubt that the killing was (1) intentional, and (2) unlawful, the jury was told that the defendant would be guilty of murder unless he proved by a preponderance of the evidence that he killed in the heat of 33 passion in which case he could be convicted only of manslaugh- ter. Under North Carolina rules when the State proved beyond a reasonable doubt a killing proximately resulting from the intentional use of a deadly weapon the jury here was told, in effect, that defendant would be guilty of murder in the second degree unless he “satisfies” the jury that he killed in the heat of sudden passion or in self-defense. The instructions here under consideration, therefore, like those in Maine, unconstitu- tionally relieved the prosecution of the burden of proving beyond a reasonable doubt malice and unlawfulness when the issues of their existence were properly raised. We note that there is no evidence in this case of a killing in the heat of passion on sudden provocation. Therefore this issue is not “properly presented” as it:was in Mullaney. There could not, consequently, be any Mullaney error prejudicial to defendant on this aspect of the case. As a matter of state law, however, and as the jury was in- structed here, our rules allocating burden of proof on self- defense and heat of passion are the same. As eatiy as 34 1868 this Court in State v. Willis, supra at 29-30 said, “In the proof of such matters we do not recognize any distinction between the case where the question is whether the homicide is murder or manslaughter, and that where it is whether the killing is murder or excusable or justifiable homi- - cide.” There is in this case evidence of self-defense. The issue regarding its existence is properly presented. For the guidance of our trial judges, consequently, and inasmuch as there are jury instructions given here as if there were evidence of a heat of passion killing, we have discussed the matter as if such evidence were indeed present. It is also true that the trial judge did near the beginning and at the end of his instructions tell the jury that the State had the burden to prove beyond a reasonable doubt both malice and unlawfulness. We are cognizant of the federal rule that jury instructions must be considered contextually in determin- ing whether there is error of federal constitutional dimension. Cupp v. Naughten, 414 U.S. 141 (1973). Considering the entire instruction contextually we believe it must have meant this to the jury in this case: the state as a matter of abstract principle was required to prove each element of the offense charged, including malice and unlawfulness, beyond a reasonable doubt. If, however, an intentional killing with a deadly weapon was so 34 proved (defendant here admitted this much) a presumption arises which given in the presence of evidence of a justifiable, and hence, lawful, homicide nevertheless relieves the state of proving unlawfulness and requires the jury to find the defend- ant guilty unless this evidence satisfies it of the truth of de- fendant’s contention that he did kill in self-defense. '8] The Mullaney ruling does not, however, preclude all use of our traditional presumptions of malice and unlawfulness. It precludes only utilizing them in such a way as to relieve the state of the burden of proof on these elements when the issue of their existence is raised by the evidence. The presumptions themselves, standing alone, are valid and, we believe, constitu- tional. State v. Williams ...N.C....,... S.E. 2d... (1975); State v. Sparks, 285 N.C. 631, 207 S.E. 2d 712 (1974), pet. for cert. filed, 43 U.S.L.W. 3392 (U.S. Nov. 29, 1974) (No. 669). Neither, by reason of Mullaney, it is unconstitutional to make the presumptions mandatory in the absence of contrary evi- dence nor to permit the logical inferences arising from facts proved (killing by intentional use of deadly weapon), State v. Williams, supra, to remain and be weighed against con- 35 trary evidence if it is produced. The effect of making the presumptions mandatory in the absence of any con- trary evidence is simply to impose upon the defendant a burden to go forward with or produce some evidence of all elements of self-defense or heat of passion on sudden provocation, or rely on such evidence as may be present in the State’s case. The mandatory presumption is simply a way of stating our legal rule that in the absence of evidence of mitigating or justifying factors all killings accomplished through the intentional use of a deadly weapon are deemed to be malicious and unlawful. The prosecution need not prove malice and unlawfulness unless there is evidence in the case of their nonexistence. Cf. MeCor- mick, Evidence (2d Ed. 1972) § 346, n. 91. We find this per- centive language in G. Fletcher, “Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion-Practi es in Criminal Cases,” 77 Yale L.J. 905 (1968) (cited in Mullaney v. Wilbur, supra, n. 16): “The critical step in the conceptual evolution of malice is MacKally’s Case. [9 Co. Rep. 65b, 77 Eng. Rep. 828 (1611)]. That early 17th century decision, as reported and interpreted by Coke, stands for the principle that the prosecution need not prove the element of malice to 35 convict of murder. The judges realized that malice does not lend itself to affirmative proof; by and large, the malicious killing is defined by reference to what it is not, not by what it it. As agreed by all, one type that was not malicious was a killing provoked by a sudden quarrel. Thus, to have a triable issue of malice, one had to have a triable claim that the defendant killed in the course of a sudden quarrel.” The same, we believe, may be said of the element of unlawful- ness. There is no suggestion in Mullaney that placing such a burden of producing evidence upon a defendant violates Fourteenth Amendment Due Process. “Many States do require the defendant to show that there is ‘some evidence’ indicating that he acted in the heat of passion before requiring the prosecu- tion to negate this element by providing the absence of passion beyond a reascnable doubt. (Citations omitted.) Nothing in: this opinion is intended to affect that requirement.” Mullaney v. Wilbur, supra, n. 28. If there is evidence tending to shew all elements of heat of passion on sudden provocation or self-defense the mandatory presumption of malice and unlawfulness, respectively, disap- pear but the logical inferences remaining from the facts 36 proved may be weighed against this evidence. In United States v. Barnes, 412 U.S. 837 (1973), the Supreme Court said: “Of course, the mere fact that there is some evidence tending to explain a defendant’s possession consistent with innocence does not bar instructing the jury on the inference. The jury must weigh the explanation to de- termine whether it is ‘satisfactory’. . . . The jury is not bound to aecept or believe any particular explanation any more than it is bound to accept the correctness of the inference. But the burden of proving beyond a rea- sonable doubt that the defendant did have knowledge that the property was stolen, an essential element of the crime, remains on the government.” See United States v. Dube, 520 F.2d 250 (1st Cir. 1975) (Judge Campbell concurring. ) Mullaney, then, as we have interpreted it, requires our trial judges in homicide cases to follow these principles in their jury instructions: the State must bear the burden throughout the trial of proving each element of the crime charged includ- 36 ing, where applicable, malice and unlawfulness beyond a rea- sonable doubt. The decision permits the state to rely on man- datory presumptions of malice and unlawfulness upon proof beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately resulted in death. If, after the mandatory presumptions are raised, there is no evidence of a heat of pas- sion killing on sudden provocation and no evidence that the killing was in self-defense, Mullaney permits and our law requires the jury to be instructed that defendant must be con- victed of murder in the second degree. If, on the other hand, there is evidence in the case of all the elements of heat of pas- sion on sudden provocation the mandatory presumption of malice disappears but the logical inferences from the facts proved remain in the case to be weighed against this evidence. If upon considering all the evidence, including the inferences and the evidence of heat of passion, the jury is left with a rea- sonable doubt as to the existence of malice it must find the defendant not guilty of murder in the second degree and should then consider whether he is guilty of manslaughter. If there is evidence in the case of all the elements of self-defense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. If upon considering all the evidence, including the inferences and -vidence of self-defense, the jury is left with a reasonable doubt as to the existence of unlawfulness it must find the defendant not guilty. 37 This case was tried November 21, 1974; Mullaney was decided June 9, 1975. We decline, without further guidance from the Supreme Court, to give the decision retroac- tive effect. We believe and hope that the Supreme Court will eventually determine that the decision applies prospectively only. If such a determination is eventually made by the Su- preme Court not only would we not be required to apply its principles to the case now before us, Kaiser v. New York, 394 U.S. 280 (1969) ; Desist v. United States, 394 U.S. 244 (1969), it seems that it would be considered error by the Supreme Court for us to do so. Ii Michigan v. Payne, 412 U.S. 47 (1973), the Michigan Supreme Court had rejected a higher sentence imposed upon a defendant convicted after a retrial than was imposed upon his first conviction as being violative of certain due process requirements established in North Carolina v. 37 Pearce, 395 U.S. 711 (1969). The second sentence was imposed before the Pearce decision. In Payne the United States Supreme Court held that Pearce would not apply retroactively and it was, consequently, error for the Michigan Supreme Court to apply it to a sentencing proceeding which predated the decision although the question of the constitutionality of the higher sentence was pending before the Michigan Supreme Court when Pearce was decided. The judgment of the Michigan Supreme Court was reversed and the case remanded for further proceedings. See also State v. Bullock, 268 N.C. 560, 151 S.E. 2d 9 (1966) and State v. Mills, 268 N.C. 142, 150S.E. 2d 13 (1966) where we declined to apply Miranda v. Arizona, 384 U.S. 436 (1966) to eases in which the trials were conducted before the decision but which were pending on appeal at the time the decision came down, on the authority of Johnson v. New Jersey, 384 U.S. 719 (1966). While Mullaney relied heavily on Winship and Winship was held to be retroactive in Ivan V. v. City of New York, 407 U.S. 203 (1972), it does not necessarily follow that Mullaney will be given retroactive effect. In determining whether a new rule of constitutional pro- portions is given retroactive effect the Supreme Court 23 seems to have considered three factors. The most im- portant factor seems to have: been the purpose to be served by the new rule. If the rule is designed to protect the reliability of the fact finding process and “the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined” then it has been said that the decision will on this basis alone be given full retroac- tive effect. van V. v. City of New York, supra (holding In re Winship, supra, retroactive); Roberts v. Russell, 392 U.S. 293 (1968) (holding Bruton v. United States, 391 U.S. 123 (1968) retroactive). If the first factor is not determinative then the Supreme Court has considered two other factors: the extent of reliance on previous decisions, Tehan v. United States ex rel Shott, 382 U.S. 406 (1966), even though the new rule may have been “foreshadowed” by intervening cases, Desist v. United States, supra at 248, and the effect on the administration of justice of retroactive application, Jd. at 251, not only in the nation but as a whole but within the particular jurisdictions affected. Tehan v. United States ex rel. Shott, supra at 418-419. 38 Although the first factor listed is clearly the most impor- tant. how that factor is approached by the Supreme Court seems sometimes to depend on analysis of the other two factors. Compare Tehan v. United States ex rel. Shott, supra (holding Griffin v. California, 380 U.S. 609 (1965) not retroactive), with Stovall v. Denno, 388 U.S. 293 (1967) (holding United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967) not retroactive) In holding Griffin, which declared unconstitutional the California practice of commenting on a defendant's failure to take the stand, not to be retroactive the Supreme Court in Tehan recognized that, although only six states would be affected by Griffin, almost every trial in those six states going back many years might have to be unset if Griffin were made retroactive. Noting such a devastating im- pact on the administration of justice, the Supreme Cuurt said: “Those reaping the greatest benefit from a rule com- pelling retroactive application of Griffin would be [those] under lengthy sentences imposed many years before Griffin. Their cases would offer the least likelihood of a successful retrial since in many, if not most, in- stances, witnesses and evidence are no longer available.” Tehan v. United States ex rel. Shott, supra at 418-419. 39 Mullaney and Winship are poles apart in terms of ex- tent of reliance on previous rules and the effect on the administration of justice of retroactive application. It seems clear that the Supreme Court saw no reliance by New York on previous rules in Winship. It traced almost 100 years of cases in which it had “assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.” In re Winship, supra at 362. It considered Jn re Gault, 387 U.S. 1 (1967) as an express rejection of the notion that the Due Process Clause was inapplicable to juvenile proceedings. Jn re Winship, supra at 365. Winship, furthermore, involved a juvenile proceeding. Its impact, consequently, on the administration of justice in New York would obviously be less than a rule which applies to all homicide cases. The jury instructions here under attack are based upon rules Which have been firmly with us for over one hundred years. Retroactive application of Mullaney in this State would, fur- thermore, have the same sort of affect, recognized in Tchan, as Griffin retroactively would have had in California and other jurisdictions. As of June 30, 1975, there were 269 inmates in 39 prison in this State who had been convicted of first degree mur- der serving sentences of life imprisonment or awaiting execu- tion, and 728 inmates in prison having been convicted of second degree murder serving sentences ranging from two years to life. State Correctional Statistical Abstract for the Second Quarter, 1975. If Mullaney is to be applied retroactively new trials might have to be awarded in many cases decades old. A number of other jurisdictions would, we believe, be similarly affected. In the following seven jurisdictions the de- fendant has (or had) the burden to prove by a preponderance of the evidence heat of passion on sudden provocation (or “ex- treme emotional distress”) to reduce murder to manslaughter: Delaware, Fuentes v. State, 18 Crim. Law Rptr. 2153 (Del. Oct. 14, 1975): Hawaii, (Mullaney would probably affect cases in which the appeal was finally determined prior to August 27, 1971. Compare State v. Santiago, 53 Haw. 254, 492 P. 2d 657 (1971) with State v. Cuevas, 53 Haw. 110, 488 P. 2d 322 (1971)): Maine, Mullaney v. Wilbur, supra; Maryland, Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971); Wilson v. State, 6 343 A. 2d 537 (1975): Burko v. State, 19 Md. App. 645, 313 A 2d 864 (1974) vacated .... US. ...., 95 S.Ct. 2624 (1975): Massachusetts, Comm. v Johnson .... Mass. App. ...., 326 N.E. 2d 355 (1975) restating the 40 rule of Comm. v. York, 50 Mass (9 Met.) 93 (1845); Cf. Comm. v. Gagne,..... Mass. ...., 326 N.E. 2d 907, 910 (1975): New York, People v. Balogun, .... N.Y. 2d ...., .... N.E. 2d ....,372 N.Y.S. 2d 384 (N. Y. Supreme Ct. Kings County 1975): Tennessee, Hawkins v. State 527 S.W. 2d 157 (Tenn. App. 1975). If, as we believe, Mullaney prohibits re- quiring the defendant to prove that he acted in self-defense by a preponderance of the evidence when that issue is properly presented the following seven jurisdictions would be adversely affected: Georgia, Chandle v. State, 230 Ga. 574, 198 S.E. 2d 289 (1973): See also Henderson v. State, .... Ga. ...., 218 S.E. 2d 612 (1975) (citing Mullaney) ; Ohio, State v. Poole, 33 Ohio St. 2d 18, 294 N.E. 2d 888 (1973) (for cases prior to Janu- ary 1, 1974, the effective date of Ohio Rev. Code Ann. § 2901.05 (Page 1975) which probably corrects Ohio law) ; Pennsylvania, Comm. v. Cropper, .... Pa. ...., 345 A. 2d 645 (1975) (inti- mating that Muilaney may affect Pennsylvania); Comm. v. Carbonetto, 455 Pa. 93, 314 A. 2d 304 (1974); Comm. v. Wine- brenner, 429 Pa. 73, 265 A. 2d 108 (1970); Rhode Island, State 40 v. Vellow, 107 A. 871 (1919); South Carolina, State v. Judge, 208 8.C, 497, 38 S.E. 2d 715 (1946); Texas, Parkman v. State, 149 Tex. Cr. 101, 191 S.W. 2d 743 (1945) (at least in cases tried before January 1, 1974, the effective date of the new Texas Penal Code §§ 2.03, 9.02, 9.31 (Vernon 1974), which probably corrects Texas law in this respect) ; West Virginia, State v. Col- lins, 154 W. Va. 771, 180 8.E. 2d 54 (1971). Retroactive application of Mullaney requiring retrials in homicide cases years old in at least fifteen jurisdictions would, we believe, have on the administration of justice in this country a devastating impact. We concede that the purpose of the Mullaney rule, to insure a reliable determination of the question of guilt, or the degree of guilt, weighs in favor of retroactivity. Yet the Supreme Court has recognized that “the extent to which a condemned practice infects the integrity of the truth-determining process at trial is a question of probabilities.” Williams v. United States, 401 U.S. 646, n. 7 (1971); Stovall v. Denno, supra. While in Winship there could be no question that the standard of proof employed was determinative on the issue of guilt. Jn re Winship, supra, n. 2, whether the jury instructions con- demned in Mullaney and even more clearly those under attack here would in the final analysis be so determinative to a jury so instructed is a matter of pure speculation. 41 We note that both cases from other jurisdictions which have so far considered the question, have deter- mined that Mullaney should not be given retroactive effect. Fuentes v. State, supra (Delaware); People v. Balogun, supra (New York). For the reasons given, in the trial we find No error. Justice LAKE concurring in result. It is elementary that a decision of the Supreme Court of the United States interpreting the Constitution of the United States is binding upon this Court and, although we may believe it to be erroneous, we must give it full effect in cases coming before us. It is equally elementary that a decision of a court of last resort, declaring or interpreting a rule of law, is retro- active and applies to all cases thereafter to be decided, irrespec- tive of when they arose, unless the court which rendered that decision declares otherwise. This is more clearly true when there has been no prior conflicting decision by that court. This Court 41 does not have authority to declare a decision of the Supreme Court of the United States non-retroactive. In the silence of that Court on that question a decision by it, interpreting the Due Process Clause of the Fourteenth Amendment, gives to that clause the meaning so declared just as if the interpretation had been expressly written into it at the time the Amendment was ratified. To hold, as the majority opinion does, that Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. , 44 L.Ed. 2d 508, declares that the instruction given the jury in the case now before us, violates the Due Process Clause of the Fourteenth Amendment, but that we will, nevertheless, refuse to or ler a new tria! is for this Court to deny to this defendant his mngat under the United States Constitution. I agree that to give Mullaney v. Wilbur, supra, retroactive effect and to hold that it declares the instruc- tion in question is contrary to the Due Process Clause of the Fourteenth Amendment would be disastrous, for such ruling would require a new trial, not only for this defendant, but for an unknown number, perhaps hundreds, of prisoners now serv- ing sentences for murders of which this Court has held they were lawfully convicted. The practical effect would be to release most of these convicted murders upon society since loss of wit- nesses, due to the passage of time, would, in most in- 42 stances, prevent conviction upon a retrial. This disaster can be averted if the Supreme Court of the United States declares Mullaney v. Wilbur, supra, to be non-retroactive, a consummation devoutly to be desired, but this Court has no authority so to declare and, as of this date, the Supreme Court of the United States has not done so. There is a way, however, whereby this Court can avoid this disastrous result and, in my opinion, should do so. That is to hold, as I believe is correct, that Mullaney v. Wilbur, supra, does not declare the instruction given to the jury by the Su- perior Court in Hankerson’s case a violation of the Due Process Clause. If that be true, Hankerson is not entitled to a new trial and the majority opinion has reached the correct result for the wrong reason. This is the instruction in question : “Under our system, when a person is charged with a crime and he pleads not guilty he does not have to prove that he is innocent, he is presumed innocent, and? the burden of proof is on the State to prove beyond a rea- 42 sonable doubt that he is guilty before you can find him guilty. os * * “T charge that for you to find the defendant guilty of second degree murder [the crime with which Hankerson was charged and of which he stands convicted], the State must prove two things beyond a reasonable doubt * * * that the defendant intentionally and with- out justification or excuse and with malice shot Gregory Ashe with a deadly weapon. Malice * * * means that condition of mind which prompts a person to take the life of another intentionally, or to intentionally inflict a wound with a deadly weapon upon another which proximately results in his death without just cause, excuse or justification. * * “In order to reduce the crime from second degree mur- der to manslaughter, the defendant must prove not beyond a reasonable doubt but simply to your satisfac- tion that there was no malice on his part. And in order to excuse his act altogether on the grounds of self de- fense, the defendant must prove not beyond a reason- able doubt but simply to your satisfaction that he acted in self defense. 43 * a * ft & “So I charge you, Ladies and Gentlemen, if you find from the evidence and beyond a reasonable doubt that on or about September 29, 1974, the defendant, Johnnie B. Hankerson, intentionally and with malice and without justification or excuse [i.e., not in self defense] shot Gregory Ashe with a deadly weapon, thereby proxi- mately causing George Ashe’s death, nothing else appearing, it would be your duty to return a verdict of guilty of second degree murder. However, if you do not so find, or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilt of second degree murder.” (Emphasis added. ) By this instruction the trial judge put squarely upon the State the burden to prove beyond a reasonable doubt every ele- ment of second degree murder, namely: (1) The defendant shot Ashe; (2) he thereby proximately caused Ashe’s death; (3) he 43 shot Ashe with malice (i.e., intentionally and with a deadly weapon); (4) he shot Ashe without justification or excuse (i.e., not in self defense ). Clearly, if this were all that the jury was told, the rule of Mullaney v. Wilbur, supra, would be fully satisfied. But, says the majority, this is not all they were told. They were also told that to reduce the offense to manslaughter the defendant must prove to the jury’s satisfaction he did not shoot Ashe with malice, and to excuse the killing entirely on the ground of self defense, the defendant must prove to the jury's satisfaction that he killed Ashe in self defense, the elements of which were correctly defined. At first glance it seems inconsistent and contradictory to instruct the jury that the State has the burden to prove be- vond a reasonable doubt the presence of malice and absence of the justification of self defense and the defendant has the burden of proving to the satisfaction of the jury the absence of malice or the presence of the justification of self defense. This Court has, however, held +> the contrary many times, the harmonizing factor lying in the meaning of the term “to the satisfaction of the jury.” 44 In State v. Freeman, 275 N.C. 662, 666, 170 S.E. 2d 461, Justice Sharp, now Chief Justice, speaking for a unanimous Court, said: “These cases [citations omitted] enunciate and re- iterate the rule—established in our 'aw for over one hundred years, State v. Willis, 63 N.C. 26 (1868)—that when the burden rests upon an a*cused to establish an affirmative defense or to rebut the presumption of malice which the evidence has raised against him, the quantum of proof is to the satisfaction of the jury—not by the greater weight of the evidence nor beyond a reasonable doubt—but simply to the satisfaction of the jury.” In Stansbury, North Carolina Evidence (Brandis Revision), $ 214, it is said that proving the presence of self defense or the absence of malice “to the satisfaction of the jury” does not require a showing “by the greater weight of the evidence.” If the defendant can satisfy this requirement by less than the “greater weight” of the evidence; that is by less persuasive, less convincing evidence than would be sufficient to tip the scales ever so slightly in his favor, how can it be said that the burden of proof “has been put upon him?” The burden of proof 44 is the burden to persuade the mind, to convince. A burden less than this can only be a burden to establish a reasonable, rational doubt. Thus, there is no inconsistency in telling the jury that, to convict the defendant of second degree murder, the State must prove presence of malice and absence of justification (self defense) beyond a reasonable doubt and, although the State has proved, beyond a reasonable doubt, an intentional killing with a deadly weapon, the defendant must be acquitted of that charge if he has satisfied the jury of the absence of malice or the presence of justification (self defense). Admittedly, the jury cannot be expected to know what this Court has said proof “to the satisfaction of the jury” does not mean. The question is whether the jury could have been misled by what the trial judge told them in his charge in this case. As above stated, he clearly and unequivocally told the jury they must find the defendant not guilty of second degree mur- der unless the State had proved beyond a reasonable doubt every element of that crime, including the presence of malice and the absence of justification (self defense). In my opinion, the jury which found this defendant guilty of second 45 degree murder could not have been confused about this, and the charge of the court, which is a correct statement of the law of this State, did not in any way place upon the de- fendant a burden of proof forbidden by the Due Process Clause of the Fourteenth Amendment as now construed in Mullaney v. Wilbur, supra. 1, therefore, concur in the majority’s conclu- sion that this defendant is not entitled to a new trial. 46 Supreme Court of the United States No. 75-6568 Johnnie B. Hankerson, PETITIONER, Vv. North Carolina Own PeritTion ror Writ oF CERTIORARI TO the Supreme Court of the State of North Carolina. On CoNSIDERATION of the motion for leave to proceed herein in forma pauperis and of the petition for writ of certiorari, it is ordered by this Court that the motion to proceed in forma pauperis be, and the same is hereby, granted ; and that the peti- tion for writ of certiorari be, and the same is hereby, granted. OcToBer 4, 1976. (45) O --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0214%3A2. Public record. Not legal advice.