State v. Rummage

193 S.E.2d 475, 17 N.C. App. 239, 1972 N.C. App. LEXIS 1632

• Court: Court of Appeals of North Carolina
• Decided: December 29, 1972
• Docket: No. 7220SC710
• Status: Published

Opinion

HEDRICK, Judge.

All of the assignments of error brought forward and argued in defendant’s brief relate to the court’s instructions to the jury.

First, defendant contends the court erred in not defining malice. Malice is presumed from an intentional killing with a deadly weapon. State v. Parker, 279 N.C. 168, 181 S.E. 2d 432 (1971). In this case, where the evidence tended to show the defendant intentionally shot and killed Mabry with a .25 caliber pistol, there was no necessity for the court to define malice.

Based on exceptions 3 and 4, defendant contends the court confused the definitions of second degree murder and manslaughter and failed to instruct the jury that the use of excessive force in self defense could reduce this crime from second degree murder to manslaughter. These contentions have no merit for when the charge is considered contextually it is clear the judge correctly defined second degree murder and manslaughter and instructed the jury what was required to reduce the crime from second degree murder to manslaughter.

We hold defendant had a fair trial free from prejudicial error.

No error.

Judges Vaughn and Graham concur.