State v. Roman

70 S.E.2d 857 (1952)

235 N.C. 627

STATE v. ROMAN

No. 654.

Supreme Court of North Carolina.

May 21, 1952.

*858 Hosea V. Price, Winston-Salem, for defendant-appellant.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. Claude L. Love, for the State.

WINBORNE, Justice.

The record of case on appeal discloses that defendant groups his exceptions under eleven assignments of error. In his brief here he states four questions as being involved on the appeal. But he confines his argument exclusively to the assignment of error based upon exceptions to failure of the trial court to charge the jury in accordance *859 with provisions of G. S. § 1-180, as amended by Chap. 107 of 1949 Session Laws of North Carolina.

Hence, those exceptions, in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him in accordance with provisions of Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, at pages 562-563. Nevertheless, since this is a capital felony, we have examined the matters to which those exceptions relate, and find in them no merit.

Indeed, the incriminating circumstances, revealed by the evidence offered by the State are "`of such a nature and so connected or related as to point unerringly to the defendant's guilt and to exclude any other reasonable hypothesis'. * * * State v. Stiwinter, 211 N.C. 278, 189 S.E. 868". See State v. Fulk, 232 N.C. 118, 59 S.E.2d 617. Such evidence is legally sufficient to take the case to the jury, and to support a verdict of guilty on the charge under which defendant stands indicted.

And in respect of the exception presented, and argued by defendant, we turn to the provisions of the statuteG.S. § 1-180, as so amended. It reads: "No judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury, but he shall declare and explain the law arising on the evidence given in the case. He shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided, the judge shall give equal stress to the contentions of the plaintiff and defendant in a civil action, and to the state and defendant in a criminal action."

It is contended that the court stated the evidence in too much detail, and too great length,so much so that it amounted to a statement of the State's contentions, rather than of the evidence,that this is true, particularly in view of the fact that the defendant introduced no evidence.

However, from a careful reading of the charge, as given, in the light of the provisions of this statute, and of the situation in hand, it does not appear that the trial judge transgressed either the letter or the spirit of the statute.

It is also contended that the trial court, in charging the jury, erred in not defining the crime of rape, in connection with definition of murder in the first degree. G.S. § 14-17. In the light of the testimony offered by the State as to the cause of the death of decedent, it would seem unnecessary for the court to define rape. The court charged thoroughly and clearly as to the element of premeditation and deliberation. And the bill of indictment is in compliance with the form prescribed by statute, G.S. § 15-144. See also State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613.

Finally, we say, and hold that error is not made to appear in the record and case on appeal in the case in hand.

No error.