108 S.E. 376 | N.C. | 1921
There was testimony to the effect that one of the witnesses had heard the defendant fighting the deceased the night of the homicide, and that, before the homicide, he had heard him threaten to kill him. There was evidence tending to show that McArthur and Smith were killed with a heavy single-tree, made of solid oak and having iron bands at each end of it, and which was a deadly weapon. The indentations in the skull of McArthur corresponded with the shape of the ends of this single-tree. The dead bodies of McArthur and Smith were hauled in a cart belonging to John Jones (which was borrowed by defendant, Henry Jones) to the canal near Henry's home, and thrown into the canal, Henry having said that he wanted the cart to carry the boys (McArthur and Smith) to the canal and "chunk them in." There was evidence that blood stains were found on Henry's kitchen floor, and the single-tree in the bottom of the cart. There was other evidence tending to identify the defendant as the one who committed the homicide in addition to his admission in jail that he and his wife had killed the boys, and that he intended *838 to "put it on Dad," and also his threat to kill Smith because of some real or fancied grievance.
The jury, under the evidence and the charge of the court, convicted the defendant of murder in the second degree, and from the judgment upon the verdict he appealed.
After stating the case: The principal exception of the defendant is that the court failed to define manslaughter, or to charge that the jury could find the defendant guilty of manslaughter or murder in the second degree. The full charge is not in the record. We will first consider, therefore, whether it appears from the record that the court failed to give any such instruction. We are governed, in this respect, entirely by the record, which cannot be altered by a mere exception or assignment of error. Exceptions must be confined to something alleged as error which appears in the record, and an assignment of error must ordinarily be based upon an exception duly taken. Errors in the charge may, of course, be assigned the first time in the case on appeal, but the error must appear in the record and not only in the assignment. This is necessarily true, because (784) if the showing of error depended upon the mere allegation of it, when the error did not appear in the record, it would be useless to consider the record, but only the assignment, as to the ruling of the court. Of course this would not do, and could not for a moment be accepted as a principle in the law of appellate procedure. The law is the other way, as we do not presume error was committed, but the opposite, and he who alleges that there was error must show it by the record and not by assertion only, an assignment being of no avail unless it rests upon matter appearing in the record or case on appeal. Wilson v. Wilson,
As the whole of the charge is not here, we are unable to know what it was, or whether what is not here embraced a sufficient charge as to manslaughter. We only know that defendant deemed it adequate, as he did not ask for any further instruction. We are not permitted to draw an inference favorable to the defendant merely because the record is silent as to a part of the charge. We should presume to the contrary, as the burden is upon the defendant to show any error. The fact that counsel for defendant chose to narrow the discussion and confine his argument to second degree murder does not alter the case. That is their act and not that of the court. They may have thought, and perhaps rightly so, that the evidence as to manslaughter, if there was any at all, was entirely too conjectural and would not lead the jury to adopt that view. It was hardly as substantial or probative in character as was the evidence in Byrd v. Express Co.,
We have discussed this exception upon the assumption that there was evidence of manslaughter, which is exceedingly doubtful, as all the evidence tends to show that defendant was the aggressor, and, if there was a quarrel that he brought it on and killed the deceased with malice, and not in hot blood, during a sudden quarrel, or upon legal provocation.
The exception and assignment of error are not, therefore, sustainable, and must be overruled.
All that we have said is based on the assumption that if there was evidence of manslaughter it was the duty of the judge to give a proper instruction in regard to it, whether he was asked to do so or not. This was decided in S. v. Merrick,
The exception to the judge's charge on reasonable doubt is untenable. He did say that the jury must be convinced "to a moral certainty," but he added: "If you find from the evidence that the defendants, or either of them, committed the homicide, and you so find beyond a reasonable doubt, you will return a verdict of guilty as to the one or ones whom you so find." This was stating the rule generally, but there was no request to state it more definitely, and in the absence of such a request the error, if any, is not available to the defendant. Simmons v. Davenport,
There is no special formula of the law for charging upon (786) the doctrine of reasonable doubt. It was said in S. v. Adams,
The charge that if the jury found beyond a reasonable doubt the defendant committed the homicide, the verdict should be guilty was somewhat too brief and general, but not so when considered in connection with the statement in the record that the judge charged the jury at length as to the case, and stated fully the contentions of the parties, to which there was no exception. In other words, he charged the jury correctly as to the case or counsel would have excepted. It is the fair presumption that they would have excepted if there was error in the charge. We could not well presume otherwise with such able counsel as the defendant had to protect his interests, and it is a fair and reasonable inference from this statement in the record that the charge covered the whole range of questions involved in it, including, of course, instructions as to murder in the second degree, manslaughter, and excusable homicide, and that the (787) verdict should designate the particular degree of homicide if the jury found defendant guilty of either one below murder in the first degree, which had been eliminated. As we have shown, the presumption is that the court instructed the jury correctly. When the charge is thus considered as an entirety, we cannot conclude that the jury misunderstood or disobeyed explicit instructions given to them. That the charge must be construed as one connected whole, and not by detached portions, has grown into an axiom of the law.S. v. Exum,
The defendant was no doubt most ably defended in the court below, and we know that Mr. Carter made an exceptionally strong defense of him before us.
The other exceptions, not specially discussed, by us, although not mentioned in the defendant's brief, have been fully considered and found to be without any merit.
We find no error in the case or the record.
No error.
Cited: S. v. Beam,
(788)