State v. . Murdock

Schenck, J. The defendant appellant states in her brief that “while there are several exceptions in the record, the main contention of the defendant is that there is not sufficient evidence to take the case to the jury on the felony charge.” The defendant contends that there is no evidence that she committed upon the prosecuting witness Warren an assault with intent to kill, and therefore her motion to dismiss this charge duly lodged under G. S., 15-173, should have been allowed. In fact, the exception to the refusal to sustain the demurrer to the evidence and exceptions to the charge which appear in the record present but a single question for decision, namely, was there sufficient evidence to be submitted to the jury on the question of the existence in the mind of the defendant Murdock of an intent to kill the prosecuting witness Warren. Since we are to rule upon a demurrer to the evidence as to charge of a felonious assault we are required merely to ascertain whether there is any competent evidence to sustain the allegations of the indictment. S. v. Landin, 209 N. C., 20, 182 S. E., 689, and cases there cited. When the evidence be construed in the light most favorable to the State, as it must be on a demurrer thereto, S. v. Coal Co., 210 N. C., 742, 188 S. E., 412, and cases there cited, it appears that the defendant, without any cause fired a shotgun at the prosecuting witness when she was only 14 or 16 feet away from him, the shot struck the witness in the leg and as a result of the wound the leg had to be amputated. The defendant herself testified, “He then came up with the chair and drew it on me, and when he came up with the chair the gun was down, and just as I got the gun to my stomach it went off.” Notwithstanding the defendant testified that the actual shooting was accidental the jury declined to adopt her statement and found the defendant guilty as *226 charged in the bill of indictment which contained the allegation that assault was committed with intent to kill. Intent being a mental attitude, it must ordinarily be proven, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be inferred. It should have been left to the jury to determine, from all the facts and circumstances, whether the ulterior criminal intent to kill existed in the mind of the defendant at the time the shooting took place. S. v. Smith, 211 N. C., 93, 189 S. E., 175. It would seem, and we so hold, that there was present evidence of such facts as would authorize the jury to infer an intent to kill on the part of the defendant. The evidence that the defendant left the room and returned almost immediately with a shotgun, and shot the prosecuting witness at close range, inflicting serious injury, was sufficient to carry the case to the jury upon the question of the existence in the mind of the defendant at the time of the shooting of an intent to kill. Attention is called to the fact that the brief of the defendant appellant falls short of compliance with Rule 28 of Rules of Practice in the Supreme Court of North Carolina, 221 N. C., 562, in that it does not “contain, properly numbered, the several grounds of exception and assignments of error with reference to printed pages of transcript.” However, we have examined all of the exceptions in the record and we find no substantial merit therein. The judgment of the Superior Court is affirmed, since there is in the record No error.