State v. Heller

Supreme Court of North Carolina

State v. Heller

55 S.E.2d 800, 231 N.C. 67, 1949 N.C. LEXIS 461

Supreme Court of North Carolina·Decided November 2, 1949·Published·Cited by 3 cases

Opinion

Stacy, C. J.

The defendant has been convicted of a capital felony, murder in the first degree, with no recommendation from the jury, and sentenced to die as the law commands in such case. His only exception and assignment of error is to the court’s instruction to the jury that if the *68 defendant feloniously and with, premeditation and deliberation intended to kill another person and killed his wife instead he would be guilty of murder in the first degree.

It is conceded that this instruction would be correct under appropriate circumstances. S. v. Burney, 215 N.C. 598, 3 S.E. 2d 24; S. v. Sheffield, 206 N.C. 374, 174 S.E. 105; S. v. Dalton, 178 N.C. 779, 101 S.E. 548; S. v. Fulkerson, 61 N.C. 233. See, also, S. v. Lilliston, 141 N.C. 857, 54 S.E. 427. Here, however, the defendant says the facts do not call for its application, and hence it was misleading. S. v. Anderson, 222 N.C. 148, 22 S.E. 2d 271; S. v. Bryson, 200 N.C. 50, 156 S.E. 143; S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Waldroop, 193 N.C. 12, 135 S.E. 165.

While the principle might have been applied with more directness to the facts in hand, it is manifest that no material prejudice has -resulted to the defendant from the instruction as given. It finds support in the defendant’s own evidence. Hence, as no reversible error has been made manifest, the verdict and judgment will be upheld.

No error.

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Stacy, C. J.

The defendant has been convicted of a capital felony, murder in the first degree, with no recommendation from the jury, and sentenced to die as the law commands in such case. His only exception and assignment of error is to the court’s instruction to the jury that if the *68 defendant feloniously and with, premeditation and deliberation intended to kill another person and killed his wife instead he would be guilty of murder in the first degree.

It is conceded that this instruction would be correct under appropriate circumstances. S. v. Burney, 215 N.C. 598, 3 S.E. 2d 24; S. v. Sheffield, 206 N.C. 374, 174 S.E. 105; S. v. Dalton, 178 N.C. 779, 101 S.E. 548; S. v. Fulkerson, 61 N.C. 233. See, also, S. v. Lilliston, 141 N.C. 857, 54 S.E. 427. Here, however, the defendant says the facts do not call for its application, and hence it was misleading. S. v. Anderson, 222 N.C. 148, 22 S.E. 2d 271; S. v. Bryson, 200 N.C. 50, 156 S.E. 143; S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Waldroop, 193 N.C. 12, 135 S.E. 165.

While the principle might have been applied with more directness to the facts in hand, it is manifest that no material prejudice has -resulted to the defendant from the instruction as given. It finds support in the defendant’s own evidence. Hence, as no reversible error has been made manifest, the verdict and judgment will be upheld.

No error.

State v. Heller, 55 S.E.2d 800, 231 N.C. 67, 1949 N.C. LEXIS 461 (N.C. 1949).

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