State v. . BrownState v. . Brown
- Reporters:
- , ,
- Before:
- Stacy
As a result of suspicion and jealousy, or a lovers’ quarrel, or because he “loved her too much,” the defеndant shot and killed Emma Carroll at her father’s house in McDowell County on the night оf 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 wаs no question of manslaughter.
The follоwing excerpt taken from the chаrge forms the basis of one of the defendant’s exceptive assignments of error:
*157 “Oil tbe question of second degree, tbe burden shifts to tbe defendant if tbe State bas satisfied you that tbe defendant billed with a deadly weapon, thеn tbe defendant bas to satisfy you that it wаs done in self-defense or without maliсe; and if tbe defendant does satisfy you it was done without malice, tbe killing with deаdly weapon raises two presumptions : one — that it was done with malice, and second, that it was an unlawful killing, and tbe presumption still stays with tbe defendant, аnd if you are satisfied it was without malicе, tbe burden is still on tbe defendant to satisfy yоu 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 tbe charge of tbe learned judge bas been erroneously reported. But it is here in a case duly sеttled 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 tbe 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 tbe challenged instruction, it wоuld 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 cаrried tbe correct impression to tbe‘jury. Tbe defendant at no time bad tbе burden of proof, as there was no question of acquittal or of manslaughter in tbe case. S. v. Keaton, supra.
Nor was tbe error cured by tbe verdict. Tbe defendant was entitled to have tbe two issues arising оn tbe evidence — murder in tbe first degree and murder in tbe second degree — submittеd to tbe jury under proper instructions. It сannot be known .whether tbe lesser verdict would have been rendered bad tbe different views, arising on tbe evidence, been correctly presented in tbe court’s charge. S. v. Keaton, supra; S. v. Lee, 206 N. C., 472, 174 S. E., 288.
New trial.