State v. . DeatonState v. . Deaton
- Reporters:
- , ,
- Before:
- Schencic
At the outset of the defendant’s brief it is stated that “all exceptions are abandoned except Exceptions Numbers Four and Five.”
Exception No. 4 is to that portion of his Honor’s charge which reads:
“Now, gentlemen of the jury, intoxication is no excuse for crime by erasing a spеcific intent, and I charge you, as I have heretofore, a spеcific intent is essential to conviction of crime of murder in the first degrеe, is essential to the criminality of the action or there must be premeditation or deliberation as to which terms’ have been defined tо you as some mental process of the kind in order to determine the degree of the crime.”
The defendant in his brief states that: “Both premeditation and deliberation are essential elements of the crime of first degree murder, and to instruct the jury that it was only necessary to prоve one of the necessary elements of first degree murder was error,” still the State contends that while the court may have inadvertently usеd the alternative “or” instead of the conjunction “and” between thе words “premeditation” and “deliberation,” that any error committed by such inadvertence was cured in subsequent portions of the charge. It is truе that following the portion o,f the charge assailed his Honor did several times instruct the *349 jury correctly, telling them that both premeditation and dеliberation were essential elements of the offense, and, in effect, must each be proven by the State beyond a reasonablе doubt to sustain a conviction of first degree murder. In view of the fact that the error assailed was later corrected by unmistakable words, wе perceive no harm as having come to the defendant in this resрect, and since we are therefore of the opinion that the objection is without merit, it can avail the appellant nothing. S. v. Rogers, 216 N. C., 131, 6 S. E. (2d), 499, and cases there cited.
Exception No. 5 in the Assignments of Error is in the following language, to wit: “The defendant еxcepts for that His Honor, the Trial Judge, in giving the foregoing charge did not stаte in a plain and correct manner the evidence given in the сase as to the right of self defense, and did not declare and exрlain the law arising thereon, as provided by G. S., 1-180.”
The evidence, if believed, does not disclose any facts which would support a charge оn the right of self-defense. Notwithstanding the fact that the burden of showing matters in mitigation of the presumption of at least murder in the second degree arising from the intentional killing with a deadly weapon rested upon him, the dеfendant did not offer any evidence, electing to rest his fate upon the evidence of the State. The testimony of the State’s witnesses, whо were in the cafe at the time of the fatal shooting of the deсeased by the defendant, tended to show not a word was spoken bеtween the defendant and deceased, and all the evidence tended to show the defendant had procured the gun from the wife of а neighbor and gone directly to where the deceased was, and shot him without warning of any kind, and that defendant had said before the shooting that “he was going to shoot him,” although the witness did not know to whom the defendant refеrred, and that the defendant a few minutes later, after Clark had been shоt, came back and said, “I got him.” Since we find nothing in the evidence whereon to base a charge on the right of self-defense, the absence of such a charge cannot be held for reversible error.
No error.