S. v. . Hicks , 130 N.C. 705 ( 1902 )

The prisoner was tried upon a bill of indictment for murder and convicted of murder in the first degree. No evidence was offered on his behalf, nor was there any exception to that introduced by the State. The exception taken, upon which the appeal is based, is to the refusal of the court to give, first, the special instructions prayed for, and, second, "to the charge as given." The second is a broadside exception and not entitled to be considered under the rules and decisions of this Court. S. v. McDuffie, 107 N.C. 885, and numerous other cases. But as a human life is at stake, we have carefully perused the charge of his (710) Honor as given to the jury, and find it to be without fault. The instructions prayed for were substantially given by the court, except such parts thereof as were not supported by any evidence, and to charge that "upon the whole testimony it is the duty of the jury to render a verdict of not guilty," and in so refusing there was no error. There was abundant evidence to sustain the charge in the bill of indictment. The judge is not required to give instructions in the very words in which they are asked, and when the charge substantially embraces the proper instructions prayed for, it is no ground for a new trial. S. v. Anderson,92 N.C. 732; S. v. Brewer, 98 N.C. 607; S. v. Massage, 65 N.C. 480;S. v. Neville, 51 N.C. 423; S. v. Brantley, 63 N.C. 518; S. v. Booker,123 N.C. 725, and other cases there cited.

All of the material and proper parts of the instructions asked to be given by the counsel of prisoner appear to have been fully and explicitly given. In the charge his Honor made no allusion to the "bias of hostile witnesses," nor to the degree of scrutiny to be given to the evidence of such witnesses, as contended for in the prayer for instructions, and he refused to charge that it would be murder in the second degree only if the prisoner "saw deceased in company with a woman whom he supposed to be his wife, who had deserted him and became angered thereby, and in a sudden fury slew deceased." In failing and refusing to so charge, we see no error, for the record contains no evidence to show that the witnesses were biased, or that the prisoner supposed that the deceased, Robert Crudup, was in company with a woman whom he supposed to be his wife. While it is possible, and, from the circumstances of the homicide as testified to, may be probable that prisoner supposed such to be the fact, yet there is no evidence to support such a contention; and it is (711) held in S. v. McDuffie, supra, that it is "not error to refuse a charge, however correct in law, which there was no evidence to support." The burden of the proof was to identify the prisoner as being the man who slew the deceased. No excuse or evidence in mitigation, or evidence of any kind, was offered on behalf of prisoner, nor was such shown from the evidence of the State. There is

No error.

Cited: S. v. Mehaffey, 132 N.C. 1064; S. v. Davis, 134 N.C. 634; S.v. West, 152 N.C. 834.