State v. . Snead

44 S.E.2d 359, 228 N.C. 37, 1947 N.C. LEXIS 537

• Court: Supreme Court of North Carolina
• Decided: October 8, 1947
• Status: Published

Opinion

Stacy, O. J.

We are constrained to hold the following instruction for error: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of murder in the second degree,- as the Court will instruct you what constitutes murder in the second degree, you would consider whether from all the facts in this case, both the State and the defendant, the defendant has offered such evidence as would reduce the crime with which he is charged to that of manslaughter. And in that case, gentlemen of the jury, the burden is upon the defendant to satisfy you from the evidence introduced by himself, or the evidence introduced by the State, or lack of evidence, that there was no malice in the killing, and thereby mitigate or reduce the crime charged to that of manslaughter.”

In this instruction, the court seems to have overlooked, for the moment, the defendant’s plea of not guilty, which called in question the State’s evidence and required a finding by the jury that the defendant intentionally killed the deceased with a deadly weapon before the presumption of an unlawful homicide with malice could apply, S. v. Floyd, 226 N. C., 571, 39 S. E. (2d), 598, and place upon the defendant the burden of rebutting such presumption — in part, if he would reduce or mitigate the offense to manslaughter, and altogether if he would gain an acquittal. S. v. Ellison, 226 N. C., 628, 39 S. E. (2d), 824; S. v. Burrage, 223 N. C., 129, 25 S. E. (2d), 393; S. v. Benson, 183 N. C., 795, 111 S. E., 869.

There was no admission on the hearing that the defendant slew the ' deceased with a deadly weapon, yet he was required to handle the laboring oar in the absence of a finding by the jury that he was “guilty of murder in the second degree.” This was an inadvertence, or else some error has crept into the transcript. In either event, a new trial seems necessary. We must take the record as we find it. Abernethy v. Burns, 210 N. C., 636, 188 S. E., 97. It is not now subject to change or correction. S. v. Moore, 210 N. C., 686, 188 S. E., 421. It imports verity, and we are bound by it. S. v. Dee, 214 N. C., 509, 199 S. E., 730; S. v. Brown, 207 N. C., 156, 176 S. E., 260.

The evidence of what the defendant is alleged to have said about the killing was challenged on the hearing, and the court was in error in assuming this evidence to be true. The plea of traverse put its credibility in issue. S. v. Stone, 224 N. C., 848, 32 S. E. (2d), 651; S. v. Peterson , 225 N. C., 540, 35 S. E. (2d), 645; S. v. Davis, 223 N. C., 381, 26 S. E. (2d), 869; S. v. Singleton, 183 N. C., 738, 110 S. E., 846.

For error in the charge, as indicated, a new trial will be awarded.

New trial.