State v. Logan

• Decision Date: 30 October 1912
• Citation: 76 S.E. 1,161 N.C. 235
• Court: North Carolina Supreme Court
• Parties: STATE . v. LOGAN.

76 S.E. 1

161 N.C. 235

STATE .

v.LOGAN.

Supreme Court of North Carolina.

Oct. 30, 1912.

1. Criminal Law (§ 823^*)—Trial—Instructions—Correcting Error.

Error in using "or, " instead of "and, " in the charge that, if the jury find defendant fired the fatal shot, they shall then inquire whether it was done with premeditation "or" deliberation, and, if satisfied of the fact, they will return a verdict of murder in the first degree, is corrected where, after instructions on other matters, the charge closes with the statement, that if they find he did shoot deceased, they shall ask whether the evidence satisfies them it was done with premeditation "and" deliberation, or done in perpetration of a robbery, and, if so, will return a verdict of murder in the first degree.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.*]

2. Homicide (§ 340*)—Harmless Error—Instructions.

The entire evidence showing that the killing by defendant was while he was perpetrating a robbery, and a murder so committed being declared by Revisal 1905. § 3631, murder in the first degree, error in using "or, " instead of "and, " in the charge that, if defendant did the killing with premeditation "or" deliberation, it was murder in the first degree, was immaterial.

[Ed. Note.—For other cases, see Homicide. Cent. Dig. §§ 715-720; Dec. Dig. § 340.*]

Appeal from Superior Court, Anson County; Whedbee, Judge.

Will Logan was convicted of murder in the first degree for the killing of Fred Hen-drixson, sentenced to death, and appeals. Affirmed.

Lockhart & Dunlap, of Wadesboro, for appellant.

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

BROWN, J. The record presents four assignments of error; three relating to the evidence, and one to the charge of the court. After giving each of them the consideration which the importance of this case demands, we conclude that they are without merit, and cannot be sustained.

We deem it necessary to discuss only the assignment relating to the following charge, viz.: "If you find that the defendant fired the fatal shot, then you inquire as to whether or not it was done with premeditation or deliberation, as I have defined to you; and if you are satisfied of the fact beyond a reasonable doubt, then you would return a verdict of murder in the first degree." It is clear that the use of the disjunctive "or, " instead of the conjunctive "and, " was an inadvertence upon the part of the able judge who presided at this trial. State v. Teachey, 138 N. C. 589, 30 S. E. 232. But we are of opinion, upon examination of the entire charge, that the jury could not have been misled by it. His honor corrected the error completely in the closing words of the charge. After instructing the jury carefully and correctly as to reasonable doubt, he said: "If you find he did shoot him, then ask yourself the question: Does this evidence satisfy you it was done with premeditation and deliberation, or does it satisfy you beyond a reasonable doubt that it was done in attempt to perpetrate or in perpetration of a robbery? If so, you will return a verdict of guilty of murder in the first degree."

Had his honor failed to correct the error, we would not regard it as material in this particular case. The statute (Rev. § 3631) declares a murder committed in the perpetration of, or in the attempt to perpetrate, a robbery, to be murder in the first degree. His honor might well have omitted from his charge all reference to "premeditation and deliberation, " for the entire evidence in this record shows...