42 S.E. 901 | N.C. | 1902
The indictment charged the prisoner with murder. After the evidence of the State was concluded, the prisoner demurred to the evidence, on the ground that it did not tend to prove that Cody, the deceased, died from the wound inflicted upon him by the prisoner. The demurrer was overruled, and the prisoner excepted. The prisoner then introduced evidence, a part of which made it clear that Cody died from a gunshot wound given him by the prisoner. If the State had not introduced evidence sufficient to go to the jury that Cody died *560
from the wound, and the judge was in error in overruling the demurrer, a matter which we need not decide, the error (803) was cured by the course afterwards followed by the prisoner in offering evidence supplying that which the State lacked. The introduction of such evidence was a waiver of the prisoner's right to rely on the ruling as error. 6 Enc. Pl. and Pr., p. 455. In S. v. Groves,
In the case before us the solicitor entered of record that he would not ask for a verdict of murder in the first degree, and on the argument did not insist on a conviction for murder in the second degree. At the conclusion of the evidence, his Honor explained the difference between murder and manslaughter, and instructed the jury that there was no evidence that the prisoner fought in self-defense, and that, as the solicitor did not insist on a verdict for murder in the second degree, they should (804) return a verdict of guilty of manslaughter, if they believed the evidence, and if they did not believe the evidence they should return a verdict of not guilty. We cannot see how the prisoner could have reasonably excepted to that instruction. There was no evidence that he fought in self-defense. He was therefore guilty of murder in the first degree, or murder in the second degree, or of manslaughter. He escaped on a conviction for the lightest of the crimes. No error.
Cited: Prevatt v. Harrelson,