State v. . Brown , 207 N.C. 156 ( 1934 )

Criminal prosecution, tried upon indictment charging the defendant with the murder of one Emma Carroll.

Verdict: Guilty of murder in the first degree.

Judgment: Death by electrocution.

The defendant appeals, assigning errors. As a result of suspicion and jealousy, or a lovers' quarrel, or because he "loved her too much," the defendant shot and killed Emma Carroll at her father's house in McDowell County on the night of 3 April, 1934. The defendant tendered a plea of second-degree murder. The State contended for a verdict of murder in the first degree. There was no question of manslaughter.

The following excerpt taken from the charge forms the basis of one of the defendant's exceptive assignments of error:

"On the question of second degree, the burden shifts to the defendant if the State has satisfied you that the defendant killed with a deadly weapon, then the defendant has to satisfy you that it was done in self-defense or without malice; and if the defendant does satisfy you it was done without malice, the killing with deadly weapon raises two presumptions: one — that it was done with malice, and second, that it was an unlawful killing, and the presumption still stays with the defendant, and if you are satisfied it was without malice, the burden is still on the defendant to satisfy you it was not unlawful, but was done in self-defense, or in some way that keeps it from being an unlawful killing."

We are reasonably certain the charge of the learned judge has been erroneously reported. But it is here in a case duly settled by agreement of counsel. C. S., 643; McMahan v. R. R., 203 N.C. 805, 167 S.E. 225;Cogdill v. Hardwood Co., 194 N.C. 745, 140 S.E. 732;S. v. Humphrey,186 N.C. 533, 120 S.E. 85. We are bound by the record; it imports verity.S. v. Griggs, 197 N.C. 352, 148 S.E. 547; Brown v. Sheets, 197 N.C. 268,148 S.E. 233; S. v. Palmore, 189 N.C. 538, 127 S.E. 599; S. v.Wheeler, 185 N.C. 670, 116 S.E. 413.

As we understand the challenged instruction, it would seem to be erroneous. S. v. Keaton, 206 N.C. 682; S. v. Banks, 204 N.C. 233,167 S.E. 851. At least, we are not able to say it carried the correct impression to the jury. The defendant at no time had the burden of proof, as there was no question of acquittal or of manslaughter in the case. S. v.Keaton, supra.

Nor was the error cured by the verdict. The defendant was entitled to have the two issues arising on the evidence — murder in the first degree and murder in the second degree — submitted to the jury under proper instructions. It cannot be known whether the lesser verdict would have been rendered had the different views, arising on the evidence, been correctly presented in the court's charge. S. v. Keaton, supra; S. v. Lee,206 N.C. 472, 174 S.E. 288.

New trial.