State v. Dillard
203 S.E.2d 6
N.C.
1974
Check Treatment
*75 LAKE, Justice.

The judge’s charge to the jury is not set forth in the record and no assignment of error is directed thereto. Consequently, it is presumed that the court correctly instructed the jury on every phase of the case with respect both to the law and to the evidence. State v. Pinyatello, 272 N.C. 312, 327, 158 S.E. 2d 596; State v. Hines, 266 N.C. 1, 145 S.E. 2d 363; Strong, N. C. Index 2d, Appeal and Error, § 42, and Criminal Law, § 158.

The denial of the defendant’s motion for judgment as of nonsuit was obviously correct. The undisputed testimony of several eyewitnesses to the shooting of the deceased clearly identified the defendant as the perpetrator of the offense and was sufficient to show that the shooting was intentional. Thus, the evidence was sufficient to give rise to a presumption of malice. State v. Bolin, 281 N.C. 415, 189 S.E. 2d 235; State v. Duboise, 279 N.C. 73, 81, 181 S.E. 2d 393. The undisputed evidence further shows that the defendant, armed with a shotgun, went to the church, remained in that vicinity some two and one half hours before the shooting, smuggled the gun into the church under his coat and, when his wife entered the church and was proceeding down the aisle, shot her at close range and then fired two more shots into her body as she lay on the floor. Following that, he fired several shots at her relatives as they fled from the scene. Thus, the evidence was ample to support the finding that the murder of his wife was with premeditation and deliberation. As we said in State v. Duboise, supra, at page 82, “The additional ingredient of premeditation and deliberation necessary in first degree murder may be inferred from the vicious and brutal circumstances of the homicide, e.g., lack of provocation, threats before and during the occurrence, infliction of lethal blows after the victim had been felled and rendered helpless, and conduct of the defendant before and after the killing.” There is in this record no evidence whatever of provocation, or that the deceased spoke to or was aware of the presence of the defendant prior to the shooting.

There was no error in the court’s ruling that the defendant’s counsel could not make an argument to the jury upon the question of the punishment to be imposed. In State v. Waddell, 282 N.C. 431, 445, 194 S.E. 2d 19, we said, with reference to the trial of a defendant upon the charge of murder in the first degree, rape, arson or burglary in the first degree:

*76 “Upon the trial of any defendant so charged, the trial judge may not instruct the jury that it may in its discretion add to its verdict of guilty a recommendation that defendant be sentenced to life imprisonment. The trial judge should charge on the constituent elements of the offense set out in the bill of indictment and instruct the jury under what circumstances a verdict of guilty or not guilty should be returned. Upon the return of a verdict of guilty of any such offense, the court must pronounce a sentence of death. The punishment to be imposed for these capital felonies is no longer a discretionary question for the jury and therefore no longer a proper subject for an instruction by the judge.”

The punishment to be imposed not being a matter to be determined by the jury, defendant’s counsel was not entitled to argue this question to the jury.

The defendant’s third, and last, assignment of error is to the overruling of his motion in arrest of judgment on the ground that the death sentence imposed upon the appellant is not authorized by a constitutionally valid statute of this State, but is cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States. Of the seventy-five page brief filed by the defendant in this Court, all but three pages are in support of this contention. This portion of the brief is a verbatim copy of the brief filed by the amicus curiae in State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721, decided 25 February 1974. Contrary to the usual practice of this Court, the same amicus curiae was permitted, at the hearing of this appeal, to make a full oral argument in support of its contentions concerning this matter. All of the contentions of this defendant and of the amicus curiae upon this question were carefully considered by us and found to be without merit in State v. Jarrette, supra.

No error.

Chief Justice Bobbitt, Justice Higgins and Justice Sharp dissent as to death sentence and vote to remand for imposition of a sentence of life imprisonment for the reasons stated in the dissenting opinion of Chief Justice Bobbitt in State v. Jarrette, 284 N.C. 625, 666, 202 S.E. 2d 721, 747 (1974).