State v. Maxwell
Decision Date | 01 February 1939 |
Docket Number | 721. |
Citation | 1 S.E.2d 125,215 N.C. 32 |
Parties | STATE v. MAXWELL. |
Court | North Carolina Supreme Court |
W B. Austin, of Jefferson, H. A. Cranor, of Wilkesboro, and Trivette & Holshouser, of Boone, for appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach Asst. Attys. Gen., for the State.
The defendant was convicted of murder in the first degree of Charlie Shepherd and from sentence of death by asphyxiation appealed to the Supreme Court, assigning error.
The defendant testified in his own behalf:
The following excerpt from the charge is made the basis of an exceptive assignment of error: "But the Court charges you, gentlemen of the jury, your verdict will be one of two: Your verdict will be 'guilty of murder in the first degree', as charged in the bill of indictment, or 'guilty of murder in the second degree', and in no event will your verdict be 'guilty of manslaughter', or 'not guilty."'
We are constrained to sustain this assignment of error. The defendant had plead not guilty and the presumption of innocence followed him until removed by the verdict of the jury. While the Court may have been justified in instructing the jury that if they found the facts to be as testified by the defendant, or if they believed the testimony of the defendant himself, they could not return a verdict of guilty of manslaughter or of not guilty, the verdict was required to be predicated upon the findings of fact by the jury from all of the evidence in the case,--the credibility of the testimony being for the jury to determine. Under our system of trial the judge is prohibited from expressing an opinion as to defendant's guilt.
For error assigned there must be a
New trial.
As set out in the statement of facts in the majority opinion the defendant was sworn and testified in his own behalf. In so doing he admitted that he shot the deceased because he did not make any answer to the defendant's inquiry about trouble between the deceased and the defendant's boy. Thus, the defendant solemnly admitted in open court under oath that he intentionally shot the deceased.
It has long been the established law of this State that when a killing with a deadly weapon is admitted or established by the evidence, the law raises two presumptions against the slayer: First, that the killing was unlawful, and, second that it was done with malice; and that an unlawful killing with malice is murder in the second degree. State v. Fowler, 151 N.C. 731, 66 S.E. 567; State v. Benson, 183 N.C. 795, 111 S.E. 869; State v. Walker, 193 N.C. 489, 137 S.E. 429; State v. Miller, 197 N.C. 445, 149 S.E. 590; State v. Ferrell, 202 N.C. 475, 163 S.E. 563. Likewise, it is now elementary law that when the...
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