State v. Johnson

• Decision Date: 14 December 1912
• Citation: 161 N.C. 264,76 S.E. 679
• Court: North Carolina Supreme Court
• Parties: STATE. v. JOHNSON.

76 S.E. 679

161 N.C. 264

STATE.

v.JOHNSON.

Supreme Court of North Carolina.

Dec 14, 1912.

1. Homicide (§ 309^*) — Instructions—Grade of Offense.

On a trial for homicide where there was no evidence on which a verdict of manslaughter could have been based, an instruction that, if accused killed deceased with a deadly weapon, the jury should convict of at least murder in the second degree was not erroneous, especially where the jury convicted of murder in the first degree.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*]

2. Criminal Law (§ 782*) — Instructions-Evidence to Support Defense.

On a trial for murder where accused produced no evidence, it was not error to charge that he might rely on the state's evidence to make out his defense.

[Ed. Note.—For other cases, see Criminal Law, Cent Dig. §§ 1847, 1849, 1851, 1852, 1877, 1878, 1880-1882, 1906, 1907, 1909-1911, 1960, 1966, 1967; Dec. Dig. § 782.*]

3. Criminal Law (§ 1129*) — Appeal — Assignments of Error—Requisites.

An assignment of error that the charge was not a clear and concise statement of the law relative to the case, but was illogical and confusing, and might have misled the jury, should have pointed out the particulars in which the charge was illogical and confusing.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. § 1129.*]

4. Criminal Law (§ 1156*) — Appeal — Review—Discretionary Matters.

A refusal to set aside a verdict as against the weight of the evidence is not reviewable on appeal, being a matter in the trial court's discretion.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1156.*]

Appeal from Superior Court, Pender County; Carter, Judge.

Arthur Johnson was convicted of murder in the first degree, and he appeals. Affirmed.

Attorney General Bickett and Assistant Attorney General Calvert, for the State.

BROWN, J. The prisoner offered no evidence, and that introduced by the state tends very strongly to prove that the prisoner deliberately murdered his wife, Rose Johnson. There is evidence tending to prove that prisoner was walking with his wife some 50 yards behind their children. One witness testifies: "I saw Arthur with his hand behind him that way, and I heard the report of a pistol. She jumped behind him and clung to his back. He got loose and then he shot her again. She ran to the old shanty. He ran and shot her there. Then she goes to the place where she was first hurt, and he shot her again there. She fell, and he stood there and looked at her and helped her up. She fell the second time. He looked at her and threw his head up and walked on off. He overtook his children, and then he began to run." Another witness testifies: "I saw the shooting. I was walking along the street near the railroad. I heard squalling. I heard a woman squall, and about that time I saw the smoke of a pistol, before I heard the report of it. About that time, the same instant that I heard the report, she had clinched around his neck to the back of him. He threw her from the back to the front. She jumped to run. He ran behind her and shot her twice. Then she wheeled in a circle. She stood up for an instant. He went to her and knocked her down, and after she fell he stood over her and looked at her and caught her by her dress." There is only one exception to evidence, and there is no merit in that.

Exceptions 2 and 3 to the charge are practically the same, viz.: "The court instructs you that, if the evidence satisfies you beyond a reasonable doubt that the prisoner slew the deceased with a deadly weapon, you would at least convict the defendant of murder in the second degree." There is not a scintilla of evidence upon which a verdict of manslaughter could have been based, and no such contention was made on the trial. As the prisoner was convicted of the greater offense of murder in the first degree, this exception is not material. Never theless, the charge is correct. State v. Worley, 141 N. C, 764, 53 S. E. 128; State v. Cox, 153 N. C. 638, 69 S. E. 419; State v. Simonds, 154 N. C. 197, 69 S. E. 790.

Exception 4 is taken because his honor told the jury that the prisoner had the right to rely upon the state's evidence to make out his defense. This part of the charge is unexceptionable so far as the defendant is concerned. It gave him the benefit of any of the...