
186 S.E.2d 667 (1972)
13 N.C. App. 499
STATE of North Carolina
v.
Danny L. SALLIE.
No. 7112SC694.
Court of Appeals of North Carolina.
February 23, 1972.
*671 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Millard R. Rich, Jr. for the State.
Gary E. Conn and Asst. Public Defender William S. Geimer, for defendant appellant.
PARKER, Judge.
Appellant assigns error to the denial of his motions for nonsuit. By introducing evidence, defendant waived his first motion, which was made at the close of the State's evidence. G.S. § 15-173; State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476. On this appeal, therefore, we consider only defendant's second motion, made at the close of all the evidence. This brings in question the sufficiency of all the evidence to take the case to the jury. In determining this question, we apply the well-established rules that on motion for nonsuit in a criminal case the evidence must be considered in the light most favorable to the State, the State is entitled to every reasonable inference which may legitimately be drawn from the evidence, and defendant's evidence, unless favorable to the State, is not to be considered. However, when not in conflict with the State's evidence, defendant's evidence may be used to explain or clarify the evidence offered by the State. State v. Jones, 380 N.C. 60, 184 S.E. *672 2d 862. "Contradictions and discrepancies, even in the state's evidence, are for the jury to resolve, and do not warrant nonsuit." 2 Strong, N.C. Index 2d, Criminal Law, § 104, p. 649.
When viewed in the light most favorable to the State, the evidence in this case would establish the following: Pamela LeGros, a frail little three-year-old girl, died on 17 July 1970 as result of receiving a severe blow on her abdomen. The blow was of such force as to cause an immediate and simultaneous rupture of her heart and liver. The blow was received at a time when Pamela and defendant, a grown man in military service, were alone together in a house trailer which had been jointly rented by defendant and Pamela's mother. The only real question for the jury was whether defendant struck the blow, as the State contends, or the blow resulted from an accidental fall, as defendant contends. In our opinion the evidence, when viewed in accordance with the rules above set forth, was sufficient to support a jury finding that defendant struck the blow.
There was evidence that the blow which caused death was the same blow which left a semicircular bruise mark on the child's abdomen; the pathologist testified that in his opinion this was so. The size and shape of this semicircular bruise mark closely approximated the size and shape of the heel of a man's boot. There were numerous other bruise marks distributed over the child's entire body, some of which were of very recent origin. The pathologist testified that the distribution of these bruises showed "a kick mark on the head and the majority of it." There was a fresh cut on the back of the head, which occurred very close to or at the time of death. There were pinch-type bruises, described by the pathologist as "a human bite mark," on the child's arm. There was evidence from which the jury could find that the child had been horribly abused over a period of time prior to death. There was evidence that this abuse did not commence until about the time defendant started living in the trailer with Pamela's mother.
While it is difficult to comprehend how any man, however brutal, could commit acts of such unrestrained savagery upon a frail and helpless child as the evidence in this case indicates, the nature and extent of the multiple injuries inflicted on little Pamela's body at or about the time she received the blow which caused her death were not such as would normally have resulted from a single accidental fall occurring while she played in the living room of her mother's house trailer. Rather, her wounds furnish mute but eloquent testimony that they may have been caused by a sustained, savage, and intentional attack, during the course of which the death blow was delivered. When all circumstances warranted by the evidence are considered together and when the State is given the benefit of all legitimate inferences which may reasonably be drawn therefrom, we find in this case substantial evidence of every essential element of the crime of second-degree murder of which defendant was found guilty. This was all that was required to justify submitting the case to the jury. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. It was for the jury to determine whether guilt was established beyond a reasonable doubt.
Defendant contends that in any event there was no evidence of premeditation and deliberation and therefore it was error to submit an issue as to his guilt of first-degree murder. While the elements of premeditation and deliberation necessary for first-degree murder may be inferred in some cases from evidence of the vicious and brutal nature of a homicide, State v. Duboise, 279 N.C. 73, 181 S.E.2d 393, it is not necessary for us to decide whether the circumstances disclosed by the evidence in the present case were sufficient for that purpose. Here, the jury acquitted defendant of the capital felony. Conviction of murder in the second degree rendered harmless any error, if any was committed, *673 in submitting to the jury the question of defendant's guilt of the more serious offense, at least absent some showing that the verdict of guilty of the lesser offense was affected thereby. State v. Casper, 256 N.C. 99, 122 S.E.2d 805; State v. DeMai, 227 N.C. 657, 44 S.E.2d 218; State v. Keyes, 8 N.C.App. 677, 175 S.E.2d 357. Defendant has not shown that his conviction was affected in any way by the jury's consideration of his possible guilt of the more serious charge.
During the testimony of the pathologist, the witness identified fourteen color photographs as correctly and accurately representing the body of Pamela LeGros as it appeared on 18 July 1970 when he performed the autopsy. The court excluded one of these, but over defendant's objection permitted the jury to see the remaining thirteen. In this there was no error. Defendant does not contend the photographs are inaccurate or were not properly taken and authenticated, and he admits that some of them were relevant. His contention is that others were irrelevant because "completely unrelated" to the cause of death and that the trial judge abused his discretion by permitting the jury to see so many inflammatory and gruesome pictures. We do not agree. While the immediate cause of death may have been the result of a single severe blow to the child's abdomen, as the pathologist testified was his opinion, the condition of the child's entire body was relevant to the only real question before the jury, namely, under what circumstances and by what means did the child receive the fatal blow. "Ordinarily, a witness may use photographs to explain or illustrate anything which it is competent for him to describe in words, State v. Atkinson, supra (275 N.C. 288, 167 S.E.2d 241); State v. Gardner, 228 N.C. 567, 46 S.E.2d 824, and if a photograph is relevant and material, the fact that it is gory or gruesome will not alone render it inadmissible." State v. Chance, 279 N.C. 643, 654, 185 S.E.2d 227, 234. In the present case the photographs were used by the pathologist to illustrate his testimony. They served to make that testimony more intelligible to the jury. The trial judge instructed the jury that they were for purposes of illustration and were not substantive evidence. Each picture which the jury viewed was relevant and served a useful and proper purpose. There was no error in permitting the jury to see them.
The record discloses that during the direct examination of the pathologist and immediately after the witness had described the semicircular bruise on the child's abdomen, the following occurred:
"Q. Can you determine the cause of the bruise that you described there, Doctor?
A. I can't specifically, but it is reminiscent of a heel mark.
Objection by Attorney Geimer, with motion to strike.
Court: Well, are you testifying out of your own personal experience or are you just sort of making a surmise?
A. Well, it looks like a heel mark but that is purely a surmise.
Court: All right, Ladies and Gentlemen, you may disregard what caused the bruise."
Defendant noted an exception to the foregoing and on this appeal contends that the trial judge committed prejudicial error entitling him to a new trial in failing to order the doctor's answer stricken and in failing to instruct the jury unequivocally that they must disregard it. We do not agree. It was clearly competent for the doctor to describe to the jury the shape and appearance of the bruise marks which he found on the child's body and to illustrate his testimony by use of the properly authenticated pictures. The jury had already heard this testimony and had seen the pictures showing the bruise in question. While it may have been preferable for the trial judge to have couched his instruction to the jury in more positive terms, it seems *674 clear to us from the instruction as given that the jury understood that they were not to regard the doctor's answer as any expression of an expert opinion on his part that the bruise had in fact actually been produced by a blow from a heel. On the contrary, it is clear that the jury understood that they were free to make their own determination from all of the evidence as to the manner in which the child's injuries had been received. Moreover, in other portions of his testimony the doctor, without objection as far as the record before us discloses, was permitted to describe other marks on the child's body as "a kick mark on the head and the majority of it" and as "a human bite mark." In view of this testimony, as to which defendant apparently interposed no objections, it hardly seems possible that the jury's verdict could have been affected by the trial judge's failure to express in a more positive manner his ruling on defendant's motion to strike. Harmless error not affecting the outcome of the trial does not warrant a new trial.
Appellant assigns error to portions of the court's charge to the jury. In particular, by assignment of error based on Exception No. 19, appellant contends error was committed when the court instructed the jury that they might find defendant guilty of second-degree murder if they found from the evidence and beyond a reasonable doubt that defendant "intentionally assaulted Pamela LeGros with his hands, fist, or feet, which were then used as deadly weapons," and that her death was a proximate result of his acts. Under the circumstances of this case the instruction was proper. The instruction does not assume facts not in evidence. There was competent evidence from which the jury might find that defendant had assaulted the deceased "with his hands, fist, or feet," and the instruction properly leaves it to the jury to determine whether he in fact did so and, if so, whether his hands, fist, or feet "were then used as deadly weapons."
It is true that ordinarily if death ensues from an attack made with hands and feet only, on a person of mature years and full health and strength, the law would not imply malice required to make the homicide second-degree murder. This is so because, ordinarily, death would not be caused by use of such means. The inference would be quite different, however, if the same assault were committed upon an infant of tender years or upon a person enfeebled by old age, sickness, or other apparent physical disability.
As long ago as 1859, Ruffin, J., speaking for our Supreme Court in State v. West, 51 N.C. 505, at 509, said:
"An instrument, too, may be deadly or not, according to the mode of using it or the subject on which it is used. For example, in a fight between men the fist or foot would not generally be regarded as endangering life or limb. But it is manifest that a wilful blow with the fist of a strong man on the head of an infant, or the stamping on its chest, producing death, would import malice, from the nature of the injury likely to ensue." (Emphasis added.)
Decisions of other courts are in accord. In Bishop v. People, 165 Colo. 423, 439 P. 2d 342, the Supreme Court of Colorado considered the appeal of a defendant who had been convicted of the second-degree murder of his three-year-old stepson. The child's death occurred under circumstances strikingly similar to those disclosed by the record in the case now before us. In that case the defendant objected to the portion of the trial court's charge which reads as follows:
"If you should find beyond a reasonable doubt that death ensued from an attack made with the hands or feet, or otherwise, upon an infant of tender years, you are then instructed that under such circumstances malice may be implied."
In approving this instruction and affirming the conviction, the Court said (439 P.2d, at 346):
"It is probably true, as a general rule, that where death ensues from an attack *675 made with the hands or feet on a person of mature years, who is in good health, malice cannot be implied. Ordinarily, death would not be caused by such means. However, this general rule does not apply where such an assault with the hands or feet is committed on an infant of tender years or a person enfeebled by old age or disease. In such cases malice may be implied. Balltrip v. People, 157 Colo. 108, 401 P.2d 259; Milosevich v. People, 119 Colo. 56, 199 P.2d 895; McAndrews v. People, 71 Colo. 542, 208 P. 486, 24 A.L.R. 655."
The case of Balltrip v. People supra, also presented a factual situation strikingly similar to that in the case presently before us. In that case defendant was charged with the murder of a three and one-half-year-old child, who died from head injuries. Defendant lived with the child's mother in a house trailer and the child was injured while in defendant's care in the trailer. Defendant contended the child received his injuries by falling from a couch and striking his head on a stove. The State's evidence tended to show that the defendant attacked the child with his fists. In affirming defendant's conviction for second-degree murder the court approved an instruction that if the jury should find beyond a reasonable doubt "that death ensued from an attack made with the hands, or otherwise, upon an infant of tender years, you are then instructed that under such circumstances malice may be implied."
Other illustrative cases in which courts have approved the implication of malice required for second-degree murder from evidence of an attack by hands or feet alone, without use of other weapons, are: Stockton v. State, 239 Ark. 228, 388 S.W. 2d 382 (attack upon an eighty-nine-year-old woman); People v. Kinzell, 106 Ill. App.2d 349, 245 N.E.2d 319 (circumstantial evidence of an attack upon an eight-month-old infant; no evidence of any weapon); Corbin v. State, (Ind.) 234 N.E.2d 261, reh. den. 237 N.E.2d 376 (father's conviction for second-degree murder in killing of 21-month-old daughter by blows with his hand sustained by divided court; majority found sufficient evidence of malice); Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394 (attack by large, powerful man upon small, weak man who was prone and defenseless); Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125 (persistent attack upon victim who lay prostrate); See also cases reported in Annotation, "Inference of malice or intent to kill where killing is by blow without weapon," 22 A.L.R.2d 854.
We have also carefully examined appellant's remaining assignments of error, all of which are directed to various portions of the court's charge to the jury. When the charge is considered as a whole it fairly presented the case to the jury, and we find no prejudicial error therein sufficient to justify awarding a new trial. In the entire trial and in the judgment imposed we find
No error.
CAMPBELL and MORRIS, JJ., concur.
