State v. Wall
| Decision Date | 10 January 1934 |
| Docket Number | No. 543.,543. |
| Parties | STATE. v. WALL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rockingham County; Sink, Judge.
Lowell Wall was convicted of murder in the second degree, and he appeals.
No error.
Criminal prosecution tried upon indictment charging the defendant with the murder of one Sandy Sisk.
Lowell Wall shot and killed Sandy Sisk on Easter Monday, 1933, about 3 a. m., while the two were engaged in a duel with pistols at the home of Mrs. Nat Martin, mother-in-law of the deceased. The position of the defendant is that he did not bring on the fight, and that he used no more force than was necessary to repel the attack in his own proper self-defense.
Over objection of defendant, Shackle Bel-ton, a witness for the state, was allowed to testify that about a month before the shoot-ing the defendant told him that on one occasion he could have killed Sisk if he wanted to, and claimed he did it in self-defense; that he came mighty near doing it; that Sandy was jealous of him and his wife.
The deceased's bloody clothes were also exhibited to the jury over objection of defendant
Verdict: Guilty of murder In the second degree.
Judgment: Imprisonment in the state's prison, at hard labor, for a term of not less than fifteen nor more than twenty years.
The defendant appeals, assigning errors.
Sharp & Sharp and Joe W. Garrett, all of Eeidsville, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell and T. W. Bruton, Asst. Attys. Gen., for the State.
The announcement of the solicitor, made before entering upon the trial, that the state would not ask for a verdict of more than murder in the second degree, was tantamount to taking a nolle prosequi on the capital charge. State v. Gregory, 203 N. C. 528, 166 S. E. 387; State v. Brigman, 201 N. C. 793, 161 S. E. 727; State v. Spain, 201 N. O. 571, 160 S. E. 825; State v. Hunt, 128 N. C. 584, 38 S. E. 473.
In this state of the record, the testimony of the witness, Shackie Belton, even if regarded as indefinite or too remote in point of time, could not be held for reversible error, though admitted over objection of defendant, for the element of premeditation and deliberation, necessary to be shown on the capital charge, had been removed from the case by the action of the solicitor, and both the unlawfulness of the homicide and malice on the part of the defendant were presumed from the intentional killing of the deceased with a deadly weapon....
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