State v. . Franklin

Denny, J. The defendant presents for review eight assignments of error based on exceptions to his Honor’s charge. The first of these is directed to the following: “As I have charged you heretofore, where an intentional killing is admitted by the defendant or is established by the State beyond a reasonable doubt, the law presumes that it ivas unlawful and that it was done with malice, and nothing else appearing, the defend *338 ant would be guilty of murder in tlie second degree, or manslaughter, as the jury may find the facts to be.” The defendant insists that the presumption of malice does not arise from an intentional killing, but only from the intentional killing of a human being with a deadly weapon, citing S. v. Clark, 225 N. C., 52, 33 S. E. (2d), 245; S. v. Bright, 215 N. C., 537, 2 S. E. (2d), 541; S. v. Hawkins, 214 N. C., 326, 199 S. E., 284, and he further contends this instruction is erroneous because it is tantamount to saying “any intentional killing is unlawful.” We concede that this instruction, if standing alone, would be objectionable. We think, however, the exception is untenable, because in his charge immediately preceding the portion excepted to, the trial judge said : “Where it is admitted or established by the evidence beyond a reasonable doubt that the defendant intentionally killed the deceased with a deadly weapon, the law raises two presumptions against the defendant, first, that the killing was unlawful, and, second, that it was done with malice, and an unlawful killing with malice is murder in the second degree.” The evidence of the State and of the defendant clearly establishes the fact that the deceased was killed with a deadly weapon by the defendant, but he contends it was accidental, that he did not intend to shoot anyone. Therefore, the question for the jury to decide was whether the gun was intentionally or accidentally fired. We hold that on the facts disclosed on this record, the instruction was not prejudicial, when considered in connection with the preceding instruction. In charging the jury on the sufficiency of legal provocation to reduce murder in the second degree to manslaughter, his Honor said : “The legal provocation that will reduce murder in the second degree to manslaughter must be more than mere words, as language, however abusive, neither excuses nor mitigates the killing, and the law does not recognize circumstances as legal provocation which in themselves do not amount to an assault. If, however, the deceased person assaulted the one accused, that is if he laid his hands on him or choked him, or shot at him without cause, and the accused killed the deceased in the heat of passion caused by the assault, and not from premeditation and deliberation, and not from malice, he would not be guilty of more than manslaughter, he would not be guilty of murder in the second degree.” The defendant insists the above instruction is erroneous in two respects. In the first place, the statement “the law does not recognize circumstances as legal provocation which in themselves do not amount to an assault” is incorrect; and in the second place, it states in effect that if the defendant was being assaulted or shot at, at the time the fatal shot was fired, he would be guilty of manslaughter, thereby denying to him the right of self-defense. *339 It is contended by the defendant that a threatened assault as well as an actual one will be sufficient legal provocation to reduce murder in the second degree to manslaughter. S. v. Hightower, 226 N. C., 62, 36 S. E. (2d), 649; S. v. Mosley, 213 N. C., 304, 195 S. E., 830; S. v. Terrell, 212 N. C., 145, 193 S. E., 161. Conceding the contention of the defendant, we do not see how he was hurt by the instruction. In S. v. Lee, 193 N. C., 321, 136 S. E., 877, where a similar charge resulted in a new trial, there was no evidence of an actual assault and the jury returned a verdict of murder in the second degree. But here the defendant testified that at the time the fatal shot was fired he was actually being assaulted by three members of the family of Deck Franklin; that Mrs. Franklin was choking him and the others had hold of the gun, while other members of the family were coming upon him, swearing they would kill him. In view of this testimony and the further fact that the jury found there was sufficient legal provocation to reduce the charge of murder in the second degree to manslaughter, makes the exception without merit. The further contention that the above charge denied the defendant his right of self-defense, cannot be sustained. For immediately following the above portion of the charge, the court gave a proper and comprehensive charge on the defendant’s plea of self-defense. He was given every consideration in this respect, to which he was entitled under the law. It must be conceded, however, that these portions of the charge, as well as some others, to which the defendant excepted and assigns as error, would be objectionable unless the charge is considered contextually. But when it is so considered, as it must be, it is in substantial compliance with the law. S. v. Hough, 227 N. C., 596, 42 S. E. (2d), 659; S. v. Davis. 225 N. C., 117, 33 S. E. (2d), 623; S. v. Smith, 221 N. C., 400, 20 S. E. (2d), 360. We have carefully examined the remaining assignments of error presented for our consideration, and none of them show error of sufficient merit to warrant a new trial. No error.