APPEAL by defendants from sentences of death imposed by Grist, J., 21 October 1974 Criminal Session of GASTON County Superior Court. Upon motion of each defendant, we certified for initial appellate review by this Court their appeals from the prison sentences imposed in the same trial upon their convictions of felonious burning of personal property.
Justice Copeland, wrote the opinion.
Defendants were represented by separate counsel and filed separate appeals. Some of the assignments of error are the same and some relate only to one defendant.
Our Court has held that where there are two indictments in which both defendants are charged with the same crimes, then they may be consolidated for trial in the discretion of the court. State v. Combs, 200 N.C. 671, 674, 158 S.E. 252, 254 (1931). "The Court is expressly authorized by statute in this State to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others. Id. at 674, G.S. 15-152; State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962).
Defendant Mitchell contends the consolidation was prejudicial to him because of the testimony of William Richard Stewart, the brother-in-law of defendant Lanford. A careful examination of the record indicates that Stewart testified as to substantially similar incriminating statements made by each defendant in the presence of one another. In essence, Mitchell adopted Lanford's admissions to Stewart. This assignment is overruled.
Defendant Lanford contends that the consolidation was prejudicial against him because defendant Mitchell testified in his own behalf at the trial and attempted to mitigate the killing and reduce it to second-degree murder because of his use of drugs and intoxicants. Lanford contends that this especially hurt his case since he elected not to testify in his own behalf. There is absolutely nothing in the record to indicate that the trial judge in making his ruling on consolidation knew that Mitchell would take the witness stand. In any event, Mitchell had a right to testify if he wished and Lanford could crossexamine him. Moreover, it is difficult to understand how Lanford can contend that he was prejudiced by Mitchell testifying when in fact Mitchell admitted the killing and the burning of the vehicle and attempted by his testimony to exonerate Lanford in every way. It was proper and appropriate for the two defendants to be tried together and there is no merit to this assignment of error.
Defendants Lanford and Mitchell next contend that the court should have dismissed the cases against them as of nonsuit and for mistrial for the charges of first-degree murder at the close of the State's evidence and at the close of all the evidence. Lanford makes a similar contention with respect to the charge of felonious burning of personal property.
Upon a motion for nonsuit, the trial court must consider the evidence in the light most favorable to the State. The trial court is not concerned with the weight of the testimony, but only with whether the evidence, be it direct or circumstantial, supports sending the case to the jury. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). Conflicts and discrepancies in the evidence should be resolved in the State's favor. State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975); State v. McNeil, supra; State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).
In order to convict the defendant of first-degree murder, the State must satisfy the jury beyond a reasonable doubt of all the elements thereof, to wit, an unlawful killing of a human being with malice and with a specific intent to kill and committed after premeditation and deliberation.
"Of course, ordinarily, it is not possible to prove premeditation and deliberation by direct evidence. Therefore, these elements of first degree murder must be established by proof of
circumstances from which they may be inferred. Among the circumstances to be considered by the jury in determining whether a killing was with premeditation and deliberation are: want of provocation on the part of the deceased; the conduct of the defendant before and after the killing; the use of grossly excessive force; or the dealing of lethal blows after the deceased has been felled. State v. Buchanan, 287 N.C. 408, 420-21, 215 S.E.2d 80, 87-88 (1975). State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Hamby and State v. Chandler, 276 N.C. 674, 174 S.E.2d 385 (1970); State v. ...