State v. McIlwain

Supreme Court of North Carolina

State v. McIlwain

183 S.E.2d 538, 279 N.C. 469, 1971 N.C. LEXIS 849

CourtSupreme Court of North Carolina

DecidedOctober 13, 1971

DocketNo. 67

StatusPublished

Cited by1 cases

This text of 183 S.E.2d 538 (State v. McIlwain) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. McIlwain, 183 S.E.2d 538, 279 N.C. 469, 1971 N.C. LEXIS 849 (N.C. 1971).

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Opinion

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 for[473]*473ward 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.

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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 for[473]*473ward 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.

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Bluebook (online)

183 S.E.2d 538, 279 N.C. 469, 1971 N.C. LEXIS 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcilwain-nc-1971.

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