State v. McIlwain

279 N.C. 469 | N.C. | 1971

LAKE, Justice.

The defendant having assigned no error and having stated in his brief that he is aware of none, the only question presented by his appeal, which, itself, is an exception to the judgment of the court, State v. Sutton, 268 N.C. 165, 150 S.E. 2d 50; State v. Williams, 235 N.C. 429, 70 S.E. 2d 1, is whether error appears on the face of the record proper. State v. Hewett, 270 N.C. 348, 154 S.E. 2d 476; State v. Williams, 268 N.C. 295, 150 S.E. 2d 447. No such error appears, the indictment being in proper form, the court being properly constituted and the sentence being supported by the verdict and being within the limits authorized by the statute. G.S. 14-17. It is conceded that the charge of the court to the jury, which is not brought forward in the record, was correct. “Error may not be predicated on the possibility of error in a charge which was not reported and as to which no error is now assigned. The presumption is that the court charged the jury properly as to the law applicable to all phases of the evidence.” State v. Cruse, 238 N.C. 53, 59, 76 S.E. 2d 320.

The evidence is ample to show the proximate cause of death was a wound in the head from a pistol bullet intentionally fired at the deceased by the defendant. Upon this evidence the law raises a presumption of an unlawful killing and a presumption of malice sufficient to support a conviction of murder in the second degree. State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393; State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322.

No error.