State v. Hagan

• Citation: 42 S.E. 901,131 N.C. 802
• Parties: STATE. v. HAGAN.
• Decision Date: 09 December 1902
• Court: United States State Supreme Court of North Carolina

42 S.E. 901

131 N.C. 802

STATE.

v.HAGAN.

Supreme Court of North Carolina.

Dec. 9, 1902.

CRIMINAL LAW—DEMURRER TO STATE'S EVIDENCE—WAIVER—AID BY DEFENDANT'S EVIDENCE—ERROR CURED—DEGREE OF HOMICIDE—INSTRUCTION—PROPRIETY.

1. Where, in a prosecution for a murder, the accused demurs to the state's evidence as failing to show that deceased died from the wound inflicted, but, after the overruling of the demurrer, introduces evidence of his own which supplies this defect, any error in such ruling is thereby cured.

2. Where an accused, after demurring to the state's evidence, introduces testimony of his own which supplies a defect therein, he thereby waives his right to assign the overruling of the demurrer as error.

3. In a prosecution for homicide, the state's attorney having entered of record that he would not ask for a verdict of murder in the first degree, and not insisting in argument on the conviction for murder in the second degree, the court, after explaining the difference between murder and manslaughter, instructed that there was no evidence of self-defense, and that, if the jury believed the evidence, they should return a verdict of guilty of manslaughter, but, if they did not believe the evidence, one of not guilty. Held, as there was no evidence of self-defense that manslaughter was the lowest degree of crime of which the accused was guilty, and the accused had no ground of exception.

Appeal from superior court, Madison county; Councill, Judge.

W. E. Hagan was convicted of manslaughter, and appeals. Affirmed.

The Attorney General, for the State.

MONTGOMERY, J. The indictment charged the prisoner with murder. After the evidence of the state was concluded, the prisoner demurred to the evidence on the ground that it did not tend to prove that Cody, the deceased, died from the wound inflicted upon him by the prisoner. The demurrer was overruled, and the prisoner excepted. The prisoner then introduced evidence, a part of which made it clear that Cody died from a gunshot wound given him by the prisoner. If the state had not introduced evidence sufficient to go to the jury that Cody died from the wound, and the judge was in error in overruling the demurrer, —a matter which we need not decide, —the error was cured by the course afterwards followed by the prisoner in offering evidence supplying that which the state lacked. The introduction of such evidence was a waiver of the prisoner's right to rely on the ruling as error. 6 Enc. Pl. & Prac. p. 455. In State v. Groves, 119 N. C. 822, 25 S. E. 819, the trial judge...