irrebuttable presumption in North Carolina

2003Defendant claims that the trial court’s instructions “set forth an irrebuttable presumption that the aggravator existed based on the jury’s determination that Mr. Jones was guilty of felony murder.” We agree. “ ‘In order to rise to the level of plain error, the error in the trial court’s instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.’ ” State v. Berry, 356 N.C. 490, 523 , 573 S.E.2d 132, 153 (2002) (quoting State v. Holden, 346 N.C. 404, 435 ,

2003Defendant claims that the trial court’s instructions “set forth an irrebuttable presumption that the aggravator existed based on the jury’s determination that Mr. Jones was guilty of felony murder.” We agree. “ ‘In order to rise to the level of plain error, the error in the trial court’s instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.’ ” State v. Berry, 356 N.C. 490, 523 , 573 S.E.2d 132, 153 (2002) (quoting State v. Holden, 346 N.C. 404, 435 ,

2003Defendant claims that the trial court’s instructions “set forth an irrebuttable presumption that the aggravator existed based on the jury’s determination that Mr. Jones was guilty of felony murder.” We agree. “ ‘In order to rise to the level of plain error, the error in the trial court’s instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.’ ” State v. Berry, 356 N.C. 490, 523 , 573 S.E.2d 132, 153 (2002) (quoting State v. Holden, 346 N.C. 404, 435 ,

2003Defendant claims that the trial court’s instructions “set forth an irrebuttable presumption that the aggravator existed based on the jury’s determination that Mr. Jones was guilty of felony murder.” We agree. “ ‘In order to rise to the level of plain error, the error in the trial court’s instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.’ ” State v. Berry, 356 N.C. 490, 523 , 573 S.E.2d 132, 153 (2002) (quoting State v. Holden, 346 N.C. 404, 435 ,

1996However, this Court declined to answer the question of whether North Carolina follows the irrebuttable presumption of agency holding carriers strictly liable stating, “[pjlaintiff McLean’s [common carrier lessee] liability for the acts of defendant Wright [driver lessor] is not the issue before this court.” Id. at 290 , 324 S.E.2d at 636 .

1996However, this Court declined to answer the question of whether North Carolina follows the irrebuttable presumption of agency holding carriers strictly liable stating, “[pjlaintiff McLean’s [common carrier lessee] liability for the acts of defendant Wright [driver lessor] is not the issue before this court.” Id. at 290 , 324 S.E.2d at 636 .

1996Wyckoff, 569 N.E.2d at 1053 .

1996The Court stated that the presumption of the “right to control” the operation of a motor vehicle “does not translaté into an irrebuttable presumption ‘of control’ so as to impute negligence or establish contributory negligence, as a matter of law, without regard for exigent circumstances or general negligence principles.” Id. at 393-94, 464 S.E.2d at 297 .

1987At common law, the court could not have found Amanda Croom, age six, guilty beyond a reasonable doubt because a juvenile under age seven could not be charged with, found guilty of and punished for a criminal offense, because of the irrebuttable presumption that she was doli incapax, State v. Yeargan, 117 N.C. 706 , 23 S.E. 153 (1895).

1987At common law, the court could not have found Amanda Croom, age six, guilty beyond a reasonable doubt because a juvenile under age seven could not be charged with, found guilty of and punished for a criminal offense, because of the irrebuttable presumption that she was doli incapax, State v. Yeargan, 117 N.C. 706 , 23 S.E. 153 (1895).

1979As to the second argument, the Court agreed that Texas could take “reasonable and adequate steps” to deal with the special problems presented by soldiers and other transient populations, but it found the irrebuttable presumption used in the case of military personnel not sufficiently “precise ... to determine the bona fides of an individual claiming to have actually made his home in the State long enough to vote.” Id. at 95 .

1958J., states the rule which prevails in this jurisdiction as follows: `An infant under seven years of age cannot be indicted and punished for any offense, because of the irrebuttable presumption that he is doli incapax. * * * Between 7 and 14 years of age an infant is presumed to be innocent and incapable of committing crime, but that presumption, in certain cases, may be rebutted * * *.'" In Morris v. Sprott, 207 N.C. 358 , 177 S.E. 13 , this Court held that it was error for the trial court to hold as a matter of law that a boy 7 years of age at the time of his injury could not be guilty of con

1958J., states the rule which prevails in this jurisdiction as follows: `An infant under seven years of age cannot be indicted and punished for any offense, because of the irrebuttable presumption that he is doli incapax. * * * Between 7 and 14 years of age an infant is presumed to be innocent and incapable of committing crime, but that presumption, in certain cases, may be rebutted * * *.'" In Morris v. Sprott, 207 N.C. 358 , 177 S.E. 13 , this Court held that it was error for the trial court to hold as a matter of law that a boy 7 years of age at the time of his injury could not be guilty of con

1944In such case an irrebuttable presumption of law arose that she 'has suffered peculiar loss and injury.’ ” It will be noted that the present action, in factual situation, is distinguishable from the cases of Sheets v. Walsh, 217 N. C., 32 , 6 S. E. (2d), 817 , and Foster v. Atwater, ante, 472, 38 S. E. (2d), 316 .

1944In such case an irrebuttable presumption of law arose that she 'has suffered peculiar loss and injury.’ ” It will be noted that the present action, in factual situation, is distinguishable from the cases of Sheets v. Walsh, 217 N. C., 32 , 6 S. E. (2d), 817 , and Foster v. Atwater, ante, 472, 38 S. E. (2d), 316 .

1944In such case an irrebuttable presumption of law arose that she 'has suffered peculiar loss and injury.’ ” It will be noted that the present action, in factual situation, is distinguishable from the cases of Sheets v. Walsh, 217 N. C., 32 , 6 S. E. (2d), 817 , and Foster v. Atwater, ante, 472, 38 S. E. (2d), 316 .

1928Schuisler v. Ames, 16 Ala., 73 , 50 Am.

1920R., 124 N. C., 189 , that the absence of automatic car couplers was negligence per se, and hence_ an irrebuttable presumption.

1912Upon the state of facts in this case the true rule is, as was laid down by us, 152 N. C., 537 , and which has been reaffirmed by Hoke, J., speaking for a unanimous Court, in Bowen v. Lumber Co., 153 N. C., 369 , where he says that this rule “is never departed from unless accompanying data and relevant facts make it perfectly clear that its application would lead to an erroneous conclusion, as in the recent case of Lumber Co. v. Hutton, 152 N. C., 537 .” After the facts of this case have thus been twice pronounced as not requiring the application of this rule, it ought not now to be held that t

1912Upon the state of facts in this case the true rule is, as was laid down by us, 152 N. C., 537 , and which has been reaffirmed by Hoke, J., speaking for a unanimous Court, in Bowen v. Lumber Co., 153 N. C., 369 , where he says that this rule “is never departed from unless accompanying data and relevant facts make it perfectly clear that its application would lead to an erroneous conclusion, as in the recent case of Lumber Co. v. Hutton, 152 N. C., 537 .” After the facts of this case have thus been twice pronounced as not requiring the application of this rule, it ought not now to be held that t

1907In Coffin v. United States, 156 U. S., 432 (459), Mr. Justice White said that a-presumption is “an instrument of proof created by the law,” and Greenleaf says it is “evidence, the benefit of which the party is entitled to.” Greenleaf Ev., sec. 34.