34 S.E.2d 69 | N.C. | 1945
The defendant was tried upon a bill of indictment charging that on 28 March, 1944, she "did unlawfully, wilfully, maliciously and feloniously assault, beat and wound one James L. Warren with intent to kill, with a deadly weapon, to wit, a shotgun and did inflict serious injury, not resulting in death upon the said James L. Warren in the following manner, to wit: By shooting the said James L. Warren in the leg thereby necessitating the removal of said leg by an operation."
There was evidence tending to prove that James L. Warren, in company with his wife and one James Milstead and his wife, went to the place of business of the defendant, where meals were served to the public; that they had some beer with them and were told by the husband of the defendant that Milstead would not be served. Milstead then went out of the place, and Warren went to get his wife and the wife of Milstead, who had gone into the dining room. When they returned Warren, *225 according to the testimony of the State's witnesses, spoke to one of the waiters about not being served; according to the evidence of the defendant, Warren assaulted a waiter and beat and kicked him; later the shooting took place, but the evidence as to the immediate details and circumstances of the shooting is not all in accord. The State's evidence tends to show that the defendant shot Warren, and the defendant's evidence tends to show that the defendant did not intend to kill Warren, that the actual shooting was an accident.
The jury returned a verdict of "guilty as charged in the bill of indictment," and from judgment of imprisonment, predicated on the verdict, the defendant appealed, assigning errors.
The defendant appellant states in her brief that "while there are several exceptions in the record, the main contention of the defendant is that there is not sufficient evidence to take the case to the jury on the felony charge." The defendant contends that there is no evidence that she committed upon the prosecuting witness Warren an assault with intent to kill, and therefore her motion to dismiss this charge duly lodged under G. S.,
When the evidence be construed in the light most favorable to the State, as it must be on a demurrer thereto, S. v. Coal Co.,
Intent being a mental attitude, it must ordinarily be proven, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be inferred. It should have been left to the jury to determine, from all the facts and circumstances, whether the ulterior criminal intent to kill existed in the mind of the defendant at the time the shooting took place. S. v. Smith,
Attention is called to the fact that the brief of the defendant appellant falls short of compliance with Rule 28 of Rules of Practice in the Supreme Court of North Carolina,
The judgment of the Superior Court is affirmed, since there is in the record.
No error.