State v. . Brown

Stacy, C. J.

As a result of suspicion and jealousy, or a lovers’ quarrel, or because he “loved her too much,” the defendant shot and killed Emma Carroll at her father’s house in McDowell County on the night of 3 April, 1934. The defendant tendered a plea of second-degree murder. The State contended for a verdict of murder in the first degree. There was no question of manslaughter.

The following excerpt taken from the charge forms the basis of one of the defendant’s exceptive assignments of error:

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“Oil tbe question of second degree, tbe burden shifts to tbe defendant if tbe State bas satisfied you that tbe defendant billed with a deadly weapon, then tbe defendant bas to satisfy you that it was done in self-defense or without malice; and if tbe defendant does satisfy you it was done without malice, tbe killing with deadly weapon raises two presumptions : one — that it was done with malice, and second, that it was an unlawful killing, and tbe presumption still stays with tbe defendant, and if you are satisfied it was without malice, tbe burden is still on tbe defendant to satisfy you it was not unlawful, but was done in self-defense, or in some way that keeps it from being an unlawful killing.”

We are reasonably certain tbe charge of tbe learned judge bas been erroneously reported. But it is here in a case duly settled by agreement of counsel. C. S., 643;

McMahan v. R. R.,

203 N. C., 805 , 167 S. E., 225 ;

Cogdill v. Hardwood Co.,

194 N. C., 745 , 140 S. E., 732 ;

S. v. Humphrey,

186 N. C., 533 , 120 S. E., 85 . We are bound by tbe record; it imports verity.

S. v. Griggs,

197 N. C., 352 , 148 S. E., 547 ;

Brown v. Sheets,

197 N. C., 268 , 148 S. E., 233 ;

S. v. Palmore,

189 N. C., 538 , 127 S. E., 599 ;

S. v. Wheeler,

185 N. C., 670 , 116 S. E., 413 .

As we understand tbe challenged instruction, it would seem to be erroneous.

S. v. Keaton,

206 N. C., 682 ;

S. v. Banks,

204 N. C., 233 , 167 S. E., 851 . At least, we are not able to say it carried tbe correct impression to tbe'jury. Tbe defendant at no time bad tbe burden of proof, as there was no question of acquittal or of manslaughter in tbe case.

S. v. Keaton, supra.

Nor was tbe error cured by tbe verdict. Tbe defendant was entitled to have tbe two issues arising on tbe evidence — murder in tbe first degree and murder in tbe second degree — submitted to tbe jury under proper instructions. It cannot be known .whether tbe lesser verdict would have been rendered bad tbe different views, arising on tbe evidence, been correctly presented in tbe court’s charge.

S. v. Keaton, supra; S. v. Lee,

206 N. C., 472 , 174 S. E., 288 .

New trial.