State v. . Edmundson

Connoe, J". The assignment of error on this appeal based on defendant’s exceptions to the refusal of the trial court to allow defendant’s motion, at the close of all the evidence, that the action be dismissed, on the ground that there was no evidence tending to show that defendant is guilty of either murder in the second degree or of manslaughter, cannot be sustained. The evidence, although conflicting, was properly submitted to the jury. *719 As the defendant is entitled to a new trial for error in an instruction of the court to the jury, it is needless to discuss or to decide questions presented by assignments of error based on defendant’s exceptions to the refusal of the trial court to sustain defendant’s objections to the admission of evidence offered by the State. Conceding, without deciding, that there were errors in the admission of testimony as evidence for the State, over objections by the defendant, such errors were not prejudicial to the defendant. The evidence admitted by the court had little, if any, probative force on the questions involved in this action. The court instructed the jury as follows: “I charge you, gentlemen of the jury, that if you find from all the evidence, beyond a reasonable doubt, that the defendant cut the throat of the deceased, as contended by the State, and that the wound caused his death, or that the wound was one of the contributing causes that brought about the death of the deceased, it would be your duty to return a verdict of guilty of murder in the second degree.” The defendant excepted to this instruction and on his appeal to this Court assigns the same as error. This assignment of error is sustained on the authority of S. v. Robinson, 188 N. C., 784, 125 S. E., 617, and of cases cited in the opinion in that case. There was no evidence at the trial of the instant case tending to show that the defendant, if he did cut the deceased, did so in self-defense, or in the necessary defense of his brother, H. Weil Edmundson. There is evidence, however, from which the jury could find that if the defendant cut the deceased as contended by the State, he did so, not from malice, but from sudden passion aroused by the assault which the deceased was then making upon his brother. In that case, the defendant is guilty of manslaughter and not of murder in the second degree. It was error to instruct the jury that if they should find that the defendant cut the deceased as contended by the State, they should return a verdict of guilty of murder in the second degree. The jury should have been instructed by the court that if they should find beyond a reasonable doubt that the defendant cut the deceased as contended by the State, and that the wound thereby inflicted upon the deceased caused his death, or was one of the contributing causes of his death, but should fail to find that the act of the defendant was malicious, they should return a verdict of guilty of manslaughter. Eor this error, the defendant is entitled to a new trial. It is so ordered. New trial.