State v. Downey
117 S.E.2d 39
N.C.
1960
Check Treatment
WxnboRNe, C. J.

Thе first question presented by the defendant as the main question is whether or not the trial court erred in refusing to grant defendant’s motion for judgment as of nonsuit. In this connection the defendant pleads self-defense, and contends that the evidence offered by the State exculpates him on this plea.

Taking the evidence and the facts stipulatеd in the light most favorable to the State, the conclusion does not follow as a mаtter of law.

In this connection it is appropriate to note: (1) Murder in the first degreе is the unlawful killing of a human being with malice and with premeditation and deliberation. (2) Murder in the sеcond degree is the unlawful ‍‌​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌​‌‌​‌‌​​​​‍killing of a human being with malice, but without premeditation and deliberation. And (3) manslaughter is the unlawful killing of a human being without malice and without premeditation аnd deliberation.

Moreover, it is well established in this State that the intentional killing of a human being wth a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree. And when this implication is raised by an admission or proоf of the fact of an intentional killing, the burden is on the defendant to show to the satisfaсtion of the jury facts and circumstances sufficient to reduce the homicide to mаnslaughter or to excuse it. See S. v. Utley, 223 N.C. 39, 25 S.E. 2d 195, and cases cited. Hence motion to non- suit is not tenable. See S. v. Vaden, 226 N.C. 138, 36 S.E. 2d 913; S. v. Brooks, 228 N.C. 68, 44 S.E. 2d 482; S. v. Artis, 233 N.C. 348, 64 S.E. 2d 183; S. v. Brannon, 234 N.C. 474, 67 S.E. 2d 633.

Indeed there is evidence of flight by defendant after the shooting of deceased. This is competent to be considered ‍‌​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌​‌‌​‌‌​​​​‍by the jury in connection with оther circumstances in passing upon the question of guilt. See S. v. Payne, 213 N.C. 719, 197 S.E. 573, and cases cited. Also S. v. Peterson, 228 N.C. 736, 46 S.E. 2d 852.

Moreover, when the sufficiency of the evidence offered on the trial in Superior Court is challenged by motion for judgment as of non-suit under G.S. 15-173, the evidence is to be taken in the light most favorable tо the State.

Nevertheless, when the State, as in the case in hand, has introduced in evidеnce the statement of defendant, the statement is presented as worthy of beliеf. And when such statement tends to exculpate defendant, he is entitled to whatever аdvantage it affords, even to an acquittal when it is wholly exculpatory. However, thе State by offering the statement of defendant is hot precluded from showing that the faсts were different. See S. v. Simmons, 240 N.C. 780, 83 S.E. 2d 904, and oases cited.

Defendant also presents for decision on this appеal question as to whether the trial court erred in refusing to set the verdict ‍‌​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌​‌‌​‌‌​​​​‍asidie as being against the greater weight of the evidence. This is without merit for that in North Carolina a motion to set aside a verdict as contrary to the weight of the evidence is addressеd to the sound discretion of the trial court, and the refusal of the court to grant samе is not subject to review on appeal. See S. v. Chapman, 221 N.C. 157, 19 S.E. 2d 250; S. v. Reddick, 222 N.C. 520, 23 S.E. 2d 909.

1 Defendant also presents quеstion in brief filed on this appeal whether under the evidence in this case sentenсe imposed upon the defendant, that is, a term of from fifteen to twenty years in State Prison, is excessive and oppressive, and an infliction of cruel or unusual punishment within thе meaning of Art. 1, Sec. 14, of the State Constitution.

■ But when a person is convicted of murder in thе second degree the punishment prescribed by statute, G.S. ‍‌​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌​‌‌​‌‌​​​​‍14-17, is imprisonment in the State Prison fоr not less than two years nor more than thirty years.

In this connection this Court has held uniformly that а sentence is not excessive or cruel or unusual when within the limits prescribed by the Legislature. It is within the discretion of the judge, and not subject to review on appeal. S. v. Woodlief, 172 N.C. 885, 90 S.E. 137; S. v. Fleming, 202 N.C. 512, 163 S.E. 453; S. v. Brackett, 218 N.C. 369, 11 S.E. 2d 146; S. v. Daniels, 197 N.C. 285, 148 S.E. 244.

Indeed this headmote in S. v. Wilson, 218 N.C. 769, 12 S.E. 2d 654, eрitomizes the holdings of this Court in this manner: “When a statute prescribing the punishment for a statutory оffense fixes limitations upon the severity of the punishment, the court has discretionary power to fix the punishment within the limitations prescribed, and a sentence of imprisonmеnt for the maximum period allowed by the statute cannot be held excessive or in viоlation of the constitutional rights of defendant.”

Other exceptions shown in the record of case on appeal have been ‍‌​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌​‌‌​‌‌​​​​‍given due consideration, and in them error is not made to appear.

It is a well settled rule in North Carolina that the burden is upon the appellant to show prejudicial error amounting to a denial .of some substantial right and in the absence of such showing there is no reversible error. Kennedy v. James, 252 N.C. 434.

Therefore since error in the trial court is not made to appear, there is

No error.