State v. Ray, 166 N.C. 420 (1914)

May 30, 1914 · Supreme Court of North Carolina

166 N.C. 420

STATE v. WALLACE RAY.

(Filed 30 May, 1914.)

1. Trials — Improper Arguments — Courts—Correction—Appeal and Error — Presumptions.

Remarks made by a solicitor in tké prosecution oí a case relating to extraneous matters, calculated to unduly prejudice tbe defense, should, in proper cases, be promptly rebuked from tbe bench, with such instruction as will remove from tbe minds of tile jury the prejudice that may have been caused thereby; and when a motion for relief has been made in the trial court based upon matters of this character, set out in an affidavit, upon which the court has not stated the facts, or there are no such findings appearing in the record on appeal, and it does not appear that he was requested to state them, it will be presumed that the facts were found adversely to the appellant, or that the prejudice had been properly removed in some way by the trial judge. This Court cannot consider the affidavit as findings of fact.

2. Homicide — Trials—Defendant’s Fault — Evidence.

Upon this trial for homicide it is held that defendant’s prayer for special instruction was properly refused, that “there was no evidence that he (the prisoner) did or said anything to bring on the difficulty with the deceased,” there being evidence that he was the aggressor and entered into the fight willingly, and that the deceased, after making the assault, had retreated from five to seven steps, and the prisoner followed him and inflicted the mortal wound with a pistol shot.

3. Same — Instructions.

When one, without fault, has been murderously assailed, he may stand his ground and defend himself even to the extent of taking the life of the assailant, when such is necessary, or it' reasonably appears to him to be so, it being for the jury to determine the reasonableness of this necessity from the surrounding circumstances, as they appeared to the prisoner at the time; and where there is evidence tending to show that the prisoner, having been assaulted by the deceased, following him some six or seven steps, while the latter was retreating, and inflicted the deadly wound with a pistol shot, an instruction requested by the defendant upon the law of self-defense which omits the view that the defendant must be without fault in bringing on the difficulty, was properly refused.

4. Trials — Instructions—Self-defense—Necessity to Kill — Questions for Jury.

The charge of the court to the jury should be construed as a whole, and-upon a trial for homicide, wherein the plea of self-defense was relied on, it is not reversible error for the court to instruct the jury that the prisoner must have killed the deceased to save himself from death or great bodily harm, it appearing from the other parts of the charge that the jury were instructed to pass upon the matter in the view of the reasonableness of the necessity as it appeared to the prisoner at the time and under the circumstances, which instruction they could not have misunderstood.

Appeal by defendant from Garter, J., at September Term,. 1913, of MadisoN.

We will state the substance of so much of the testimony as bears upon the exceptions of the prisoner, Wallace Ray.

The defendant and one Logan Franklin were indicted for the murder of Greeley Hensley in December, 1912. During the trial a verdict of not guilty was entered as to Logan Franklin.

Gaither Shelton, a witness for the State, testified that the killing occurred near his store on Shelton Laurel. It was on Sunday, and the deceased went to his store with one Bessie Kirk in the evening. They left, and not long after the witness and others in the store heard a pistol or gun shot, and very soon Logan Franklin appeared at the door of the store and said, “Boys, there is a dead man out here. Greeley Hensley is killed.” They went out and saw deceased lying on his back, and the defendant was on his mule about eight or ten .steps from him. No one was there but the defendant. Bessie Kirk came shortly after the witness got there. They did not see any weapon in the hands of the deceased or on or about him as he was lying, but one of the men pulled his coat back and found a pistol at his side in the holster, and took it out. The defendant stated to witness that he had to do it in self-defense. He was very much intoxicated.

Bessie Kirk testified that she was with the deceased on the day of the homicide. She met- him on that morning at Chapel Hill, about 7 miles from Shelton Laurel, where the homicide occurred. After visiting several places and buying about one-half gallon of whiskey, one John Shelton, who was with them, went in one direction and witness and deceased went in another towards Gaither Shelton’s store. Deceased had' a pistol, but it had three empty shells in it, and he did not have any other cartridges. When they started, he had one loaded shell, but he shot that one in the field to attract Shelton and let him know where they were, as he had promised to meet them at a certain place; they were walking through the field and he riding around.

This witness did not see the shooting, but testified as to what occurred just before and immediately after the shooting, as follows : “I saw Jim first at the store. He came into the store, and "Wallace and Logan stopped in tbe yard/at the head of the porch, on their mules. Wallace said, ‘Hello, there P to Greeley, and he looked around and said, ‘Hello.’ Wallace told him to come out there, that he wanted to speak to him. Greeley went out and got up on Wallace’s mule, facing Wallace; he was on the mule’s neck, and Wallace shook hands with him. They shook hands, and then Wallace put his arm around Greeley and pulled him down and kissed him, and then Greeley gave him a bottle of whiskey; they then went down the road below the storehouse a piece; Logan Franklin went with them. Tim Shelton was in the store with Gaither Shelton. They only went down the road a little piece; they did not go out of sight. I told Greeley to come on and let’s go. He was still on the mule, and I told him to come on and let’s go, and he got off the mule from behind Wallace, and then he tried to get up behind Wallace again, and he could not do it, and Logan Franklin got down off his mule and helped Greeley up in his saddle. They then went up the road a little piece, and then Greeley got off Logan’s mule and Logan got up in the saddle and Greeley was walking between Logan and Wallace, and Greeley had one hand on Logan’s knee and the other on Wallace’s mule, I think. I said to Greeley, ‘Come on, let’s go,’ and he said, ‘All right, in a minute.’ They were all laughing. I then went up to Lovada Cutshall’s, about twenty steps from the store. The house is in the store yard. I did not see anything more. I heard the gun fire. It seemed like about four shots. I do not know exactly how many. Two shots and then, in about a thought, two more. They all sounded about the same. I then ran back there to him. Jim and Gaither and 1 got there about the same time. When I got there he was lying on his back in the road with both hands spread out. I did not see any pistol in his hands or on the ground. Wallace was on his mule down below Greeley.”

She further testified: “Gaither asked Wallace what made him kill him, and Wallace said he had to do it; and Gaither said, ‘If you had to do it, where is his knife or where is his gun, or any of his weapons ?’ and he said twice that he had to do it. It was Logan or Jim, one — Logan, I think — took the gun up after they turned him over. They took hold of his left arm and dragged bim over to bis left side. His bead was in my lap. They pulled bis coat back and got bis gun out of bis bolster. I saw them take tbe pistol out of tbe bolster. Tbe bolster was under bis back before tbey turned bim over. They pulled tbe pistol out and G-aitber told them to put it'back. I saw Wallace Ray take bis gun out and reload it.”

Obarlie Hensley testified to examining tbe body of tbe deceased on tbe day after be was killed, and said: “He bad a sweater on tbat pulled down over bis bips, and it was rolled up in front; we bad to cut it off to get at tbe place be was shot. We found one bole, as near as I can guess, something like 1% inches above bis left nipple; the other was something like from 4 to 6 inches above; then in tbe back of tbe bead there Avas a place about P/2 inches long. It appeared to be a bruise part of tbe way. It was black all along in tbe palm of his band and on bis forefinger and thumb. I took it to be a powder burn. I saw bis pistol. Briggs took it out and opened it, and it bad three empty cartridge bulls in it. It was a large pistol. I think it was a .38. We examined bis pockets an4 did not.find any cartridges in them.”

The defendant testified: “When we got above tbe store two or three' steps, Greeley Hensley said, ‘I want a drink of whiskey/ and I said I bad no whiskey, and be said I was a liar, and then we climbed doAvn off our mules. I was some 8 or 10 feet from him when the difficulty started. I do not know which one got on tbe ground first. I got on tbe ground because I thought be was going to shoot. Then Greeley Hensley went behind Jim Shelton’s mule. He was down tbe road and some five or six steps from me. At tbat time I would think be was something-near in front of the store door. I walked doAvn towards him. I do not know where Logan Franklin was at tbat time. When I got down next to Greeley,1 be turned and walked backwards doAvn tbe road. I guess be stepped, from five to seven steps.”

“Q. And then you advanced on bim — following bim up? A. Yes, sir.

“Q. And you were telling bim all the time, what? A. Told him if be treated me halfway right I would be as good a friend as be bad.

“Q. You said that in a way to let bim know that he had to treat you right, didn’t you? A. No, sir.”

“He did not back any further. When I. killed him I was about three steps from him. I don’t know whether I shot him in the left hand or not. I do not deny that his left hand was powder burnt. He fell backwards when I shot. I shot three times. Greeley Hensley shot one shot just before my pistol fired.”

That the defendant entered into the fight willingly also appears from the testimony of Logan Franklin, who testified as a witness for the defendant. Referring to both the deceased and the defendant, this witness said: “The way the boys were talking, I saw they wanted trouble.”

The court charged the jury, in part, as follows: “When, as in this case, the plea is self-defense, and the killing with a deadly weapon is established or admitted, two presxmrptions arise: first, that the killing was unlawful; second, that it was done with malice. An unlawful killing is manslaughter, and when there is established an element of malice, it is murder in the second degree. When the defendant sets up the plea of self-defense he must rebut both presumptions: the presumption that the killing was unlawful and the presumption that it was done with malice. If he stops when he has rebutted the presumption of malice, the presumption that the killing was unlawful still stands, and, unless rebutted, the defendant is guilty of manslaughter. This extract is read to you from a recent decision of our Supreme Court, and I should have prefaced it by stating to you that the evidence in this ease is that the killing with a deadly weapon is admitted, and the law imposes upon the defendant the burden of proving such mitigating circumstances as would reduce the grade of the offense from murder in the second degree to manslaughter, and if he would entitle himself to an acquittal, the further burden is upon him of proving that the killing was justifiable or excusable. The burden is upon him to prove such mitigation or excuse to the satisfaction of the jury. He is not required to prove it beyond a reasonable doubt, but he must satisfy the jury of it; and when the killing with a deadly weapon is admitted, as in this case, unless the defendant has satisfied the jury of circumstances of mitigation, it is the duty of tbe jury to convict bim of murder in tbe second degree. And although he may have satisfied tbe jury that there were mitigating circumstances, that is to say, tbe killing was without malice, it is tbe duty of tbe jury to convict bim of manslaughter, unless be shall have further satisfied tbe jury that tbe killing was excusable upon tbe principle of self-defense. Now, understand, gentlemen, tbe killing with a deadly weapon being proven beyond a reasonable doubt, or admitted by tbe 'defendant, if nothing else appeared in tbe ease, it would be your duty to convict bim of murder in tbe second degree. If be would reduce tbe grade of tbe killing from murder in tbe second degree to manslaughter, be must satisfy tbe jury that tbe killing was without malice; and if be would further excuse tbe killing upon' tbe principle of self-defense, be must satisfy tbe jury that tbe killing was from necessity upon the principle of self-defense. Tbe defendant has asked me to give you certain special instructions, which I do, and which you will take and deem tbe law in tbe case in all respects as if they were embraced in my general charge:

“1. Tbe court charges you that the defendant, at tbe time of tbe homicide, was where be bad a right to be, and it is contended by bim that there is no evidence that be did or said anything to provoke or bring on tbe difficulty with tbe deceased.

“2. If tbe jury shall find from tbe evidence that tbe deceased, Greeley Hensley, said to the defendant, Hack off there, you son of a bitch; I have bad it in for you a long time,’ at tbe same time drawing bis pistol, and tbe defendant being without fault, and under tbe reasonable apprehension that be was about to suffer death or great and enormous bodily barm, fired and killed tbe deceased, then tbe court charges you that such killing would be excusable on tbe ground of self-defense, and it would be your duty to return a verdict of not guilty.

“3. If tbe jury shall find from tbe evidence that tbe defendant was without fault, and tbe deceased made an assault upon bim with a pistol with intent to kill bim, then tbe court charges you that tbe defendant was not required to retreat, but bad tbe right to stand bis ground and kill bis adversary if necessary to save bis own life or to protect bis person from great bodily barm.

“4. Tbe necessity, real or apparent, of "taking tbe life of tbe deceased is a question to be determined by you upon tbe facts as they reasonably appeared to tbe defendant at tbe time of tKe bomieide, and tbougb you may find from tbe evidence tbat tbe pistol of tbe deceased was not loaded, yet if you shall further find from tbe evidence tbat tbe deceased drew bis pistol on tbe defendant, and tbe defendant being himself without fault in bringing on tbe difficulty and acting under a reasonable apprehension tbat be was about to suffer death or great bodily barm at tbe bands of tbe deceased, fired and killed him, then tbe court charges you tbat tbe defendant would not be guilty, and you would so find.

“5. If tbe jury shall find from the evidence tbat tbe pistol of tbe deceased was not loaded, then tbe court charges you tbat there is no evidence tbat tbe defendant bad any knowledge of tbat fact, and unless be bad such knowledge, be bad tbe right to presume tbat tbe pistol was loaded, and act upon tbat presumption in bis own proper self-defense.

“6. If you shall find from tbe evidence tbat tbe deceased assaulted tbe defendant with a pistol in such manner as would lead tbe defendant to believe tbat be was about to suffer death or great bodily barm at tbe bands of tbe deceased, and tbat tbe defendant himself was without fault in bringing on the difficulty, then tbe court charges you tbat tbe defendant bad tbe right to use bis own pistol in bis own defense, and to continue to use it until tbe deceased was disarmed, or until tbe danger, real or apparent, no longer existed.

“7. Tbe court charges the jury tbat tbe previous troubles and difficulties of tbe defendant should not be considered by you as substantive evidence in passing upon tbe question of tbe guilt or innocence of tbe prisoner. You are not trying tbe prisoner for any previous crime be may or may not have committed, but any evidence in regard to previous crimes or troubles .can only be considered by you in so far as tbe same may tend to impeach tbe credibility of tbe defendant.

“8. Tbe court charges the jury; tbat any admission of tbe defendant as to any previous troubles with other parties would not be any direct evidence bearing on tbe question of bis guilt in this case.

“The defendant admits the killing with a deadly weapon, and nevertheless asks you to acquit him upon the ground, as contended by him, that in slaying the deceased he was acting from necessity in his own proper self-defense. Where a man is violently assailed and is put in reasonable fear that he is about to suffer death or great bodily harm, he not being at fault in bringing on the difficulty either by having spoken words calculated and intended to provoke it, or without having entered the fight willingly, he has a right in his own proper self-defense to employ such force as under all the surrounding circumstances appeared to him reasonable to secure his own safety. The law, however, exacts of a defendant under circumstances of this sort entire good faith. The law excuses the killing in self-defense upon the principle of necessity — a real necessity or an apparent necessity. Where such real or apparent necessity exists, the defendant being himself without fault, as explained to. you, in bringing on the difficulty, he has a right to slay in his own defense where he acts honestly for that purpose.”

The prisoner, Wallace Ray, was convicted of manslaughter, and appealed from the judgment.

Attorney-General Bichett and Assistant Attorney-General Calvert for the State.

Gudger & McElroy and Martin, Rollins d? Wright for defendant.

Walker, J.,

after stating the case: The prisoner complains that his case was not fairly tried in the court below, but was unduly prejudiced by certain remarks made by the solicitor in his address to the jury. 'This matter was brought to the attention of the judge by an affidavit of the- prisoner, submitted on his motion for a new trial. The remarks of the solicitor, as set forth in the affidavit, were highly improper, and should have been met with a prompt and stern rebuke from the bench, if they were made; but there is no finding of fact by the judge based upon the affidavit, and we are not at liberty to find them ourselves. We cannot consider affidavits upon such a motion, but the-party complaining must request the judge to find the facts or there must be an admission of the truth of the statements contained in tbe affidavit. We must, therefore, assume that the remarks were not made as set forth, or, if they were, that the judge administered the proper correction and removed any prejudice arising therefrom. Parties complaining of improper remarks made by counsel must object thereto in apt time and proper form. We said in S. v. Tyson, 133 N. C., at p. 698, citing many cases: “The conduct of a trial in the court below, including the argument of counsel, must be left largely to the control and direction of the presiding judge, who, to be sure, should be careful to see that nothing is said or done which would be calculated unduly to prejudice any party in the prosecution or defense of his ease, and when counsel grossly abuse their privilege at any time in the course of the trial, the presiding judge should interfere at once, when objection is made at the time, and correct the abuse. If no objection is made, while it is still proper for the judge to interfere in order to preserve the due and orderly administration of justice and to prevent prejudice and to secure a fair and impartial trial of the facts, it is not his duty to do so, in the sense that his failure to act at the time or to caution the jury in his charge will entitle the party who alleges that he has been injured to a new trial. Before that result can follow the judge’s inaction, objection must be entered at least before verdict.” If we accept the affidavit as properly reciting the facts, it appears therefrom that the judge did act promptly, and told the jury that the remarks were improper, and we must take it that everything was done to safeguard the prisoner’s rights. Exceptions 1 and 2, therefore, are overruled.

The prisoner next excepted to the refusal of the court to give his special prayer for instruction to the jury, viz.: “There is no evidence that he did or said anything to provoke or bring on the difficulty with the deceased.” This prayer was properly refused, as there was evidence in the case not only that the prisoner was the aggressor, but that he shot the deceased when he was retreating and under circumstances which would have warranted a verdict for murder in the first degree. His own testimony was sufficient for this purpose: “When I got down next to Greeley Hensley, he turned and walked backwards down the road. I guess he stepped from five to seven steps, and I then advanced on Him — following him up.” There was other evidence that justified the refusal of this instruction. This covers exceptions 3 and 4.

The 5th and 6th exceptions were taken to the court’s modification of the prisoner’s fourth and sixth requests for special instructions, by which the court inserted in each of the prayers the words, “and the defendant being himself without fault in bringing on the difficulty.” We do not know certainly whether the contention of the prisoner is that the instruction should not, in law, have been restricted or qualified by the use of those words, or whether the point is that there was no evidence that the prisoner was in fault, and for that reason this should not have been made by the court. We have already disposed of the latter ground for the exception. As to the former, it may be remarked that the prisoner himself inserted similar language in his second and third prayers concerning his plea of self-defense. But the amendment of the instruction was right in itself. We may take it now as the settled law of this State that, “where a man provokes a fight by unlawfully assaulting another, and in the jjrogress of the fight kills his adversary, he will be guilty of manslaughter at least, though at the precise time of the homicide it was necessary for the original assailant to kill in order to save his life. This is ordinarily true where a man, unlawfully and willingly enters into a mutual combat with another and kills his adversary. In either case, in order to excuse the killing on the plea of self-defense, it is necessary for the accused to show that he “'quitted the combat before the mortal wound was given, and retreated or fled as far as he could with safety, and then, urged by mere necessity, killed his adversary for the preservation of his own life.’ Foster’s Crown Law, p. 276.” The same doctrine was more fully stated in S. v. Blevins, 138 N. C., 668: “It has been established in this State by several well considered decisions. that where a man is without fault, and a murderous assault is made upon him — an assault with intent to kill — he is not required to retreat, but may stand his ground, and if he kills his assailant, and it is necessary to do so in order to save his own life or to protect his person from great bodily harm, it is excusable homicide, and will be so held (S. v. Harris, 46 N. C., 190; S. v. Dixon, 75 N. C., 275; S. v. Hough, ante, 663); this necessity, real or apparent, to be determined by the jury on the facts as they reasonably appeared to him. True, as said in one or two of the decisions, this is a doctrine of rare and dangerous application. To have the benefit of it, the assaulted party must show that he is free from blame in the matter; that the assault upon him was with felonious purpose, and that he took life only when it was necessary to protect himself. It is otherwise- in ordinary assaults, even with a deadly weapon. In such case a man is required to withdraw if he can do so, and to retreat as far as consistent with his own safety. S. v. Kennedy, 91 N. C., 572. In either case he can only kill from necessity. But, in the one, he can have that necessity determined in view of the fact that he has a right to stand his ground; in the other he must show as one feature of the necessity that he has retreated to the wall.” And in S. v. Hough, 138 N. C., 663, we said: “If the assault was committed under such circumstances as would naturally induce the defendant to believe that the deceased was capable of doing him great bodily harm and intended to do it, then the law would excuse the killing, because any man who is not himself legally in fault has the right to save his own life or to prevent enormous bodily harm to himself.” These cases were reviewed and approved in S. v. Lucas, 164 N. C., 471, and more recently in S. v. Robertson, ante, 356, and to them, as precedents, may be added S. v. Dixon, 75 N. C., 275; S. v. Brittain, 89 N. C., 481, and S. v. Clark, 134 N. C., 698.

The writer of this opinion was somewhat doubtful, when the Blevins and Garland cases were decided, whether the doctrine should be carried to such an extreme length, believing that, in many eases, it might be very harsh and unjust in its application, and knowing that it was derived from an author who wrote at a time when the law was not as tender in its regard for human life as it has been in later days; but it is the established law and has strong authority, in addition to our own cases, to support it. It essential, perhaps, to the due administration of justice and the peace of society, and may be the cause of preventing frequent brawls and breaches of the law, and in its general operation contribute to the safety and preservation of human life. If, therefore, a murderous assault is made upon a man, and bis life or limb is put in jeopardy, be may stand bis ground and defend himself, even to the taking of human life, but with this qualification, that be must not, by bis own fault, have brought the necessity of so doing upon himself, in which case, if he kills, it is murder or manslaughter, according to the circumstances. If the law were otherwise, he who is guilty of the first offense might have committed it .for the very purpose of seeking, under its cover and protection, an opportunity of slaying his enemy, or his adversary, for some real or imagined grievance. For this reason we have adopted the principle in the law of homicide already stated, and as given by Foster in his Crown Law, p. 276, and to which, as will appear in Garland's case, we have added this other statement by him, at p. 277: “He, therefore, who in case of a mutual conflict would excuse himself on the plea of self-defense must show that before the mortal stroke was given he had declined any further combat and retreated as far as he could with safety, and also that he killed his adversary through mere necessity and to avoid immediate death. If he faileth in either of these circumstances he will incur the penalty of manslaughter.” To the same effect is Lord Hale, who lays it down, “That if A. assaults E. first, and upon- that assault E. reassaults A., and that so fiercely that A. cannot retreat to the wall or other non ultra without danger of his life, and then kills B., this shall not be interpreted to be sé defendeudo, but to be murder or simple homicide (manslaughter), according to the circumstances of the case; for, otherwise, we should have all the cases of murder or manslaughter, by way of interpretation, turned into se def endeudo."

The same principle was stated by Justice Holce in Garland's case, as having been applied in S. v. Brittain, 89 N. C., 481, and may be thus formulated:

When it appears that the prisoner had made an assault upon A. and was reassaulted so fiercely that he could not retreat without danger to his life, and he kills A., the killing cannot be excused upon the ground of self-defense. The first assailant has done the first wrong and, thereby, has brought upon himself the necessity of slaying bis adversary, and is, therefore, not entitled to the favorable consideration of the law.

"We think the presiding judge correctly stated this principle to the jury in his charge.

We may repeat here what we substantially said in S. v. Robertson, supra: The jury could well have found upon the testimony that the prisoner fought, not only willingly, but aggressively, and that the whole difficulty is traceable to his original misconduct.

The prisoner further excepts because the court instructed the jury once or twice that in order to sustain the plea of self-defense the prisoner must have acted from necessity, in other words, that the killing should have been really necessary to the protection of his own life or to save him. from great bodily harm. But we do not so understand the charge, which must be construed as a whole and not in segments. S. v. Exum, 138 N. C., 599; Kornegay v. R. R., 154 N. C., 389; Bird v. Lumber Co., 163 N. C., 162. The court had fully explained to the jury what the term “necessity” meant in the law of homicide — that it was either real or apparent necessity — and he impressed clearly upon the jury the view that if the prisoner slew the deceased from either real or apparent necessity, he was entitled to an acquittal, and when he used the word “necessity,” it was simply for the purpose of distinguishing between the two grades of homicide, murder and manslaughter, by drawing the attention of the jury to the fact that if the prisoner fought and killed under the influence of passion merely, and not from the “necessity” of saving himself from death or bodily harm, it would be manslaughter, and this is what was emphasized in S. v. Garland, supra. There can be no mistake as to the correctness of Judge Carter’s charge to the jury, for at the very last, .and after he had illustrated the difference between murder and manslaughter and used the words considered as objectionable, he told the jury that “the law excuses the killing in self-defense upon the principle of necessity— a real necessity or an apparent necessity.” There was no conflict or uncertainty in this charge, but it was clear, comprehensive, and consistent throughout, and intelligible to the most ordinary mind.

What we said in S. v. Price, 158 N. C., 641, is applicable here: “It is true, the court told the jury that the prisoners must have killed in their necessary self-defense, but he explained to the jury what was meant by this expression in other parts of the charge, and substantially instructed the jury, in language that could not well have been misunderstood, that if they had a reasonable apprehension, under the circumstances surrounding them, that they were about to suffer death or serious bodily harip, 'their act in slaying the deceased was excusable in law, and they should acquit the prisoners. The charge must be read and construed as a whole. S. v. Exum, supra; Kornegay v. R. R., 154 N. C., 389; S. v. Lewis, ibid., 632. When thus considered, it was a full and clear exposition of the law as applicable to the facts. This case bears no resemblance to S. v. Barrett, 132 N. C., 1005, and S. v. Clark, 134 N. C., 699.” The prisoner^ counsel relied on S. v. Barrett, supra; S. v. Clark, supra, and S. v. Morgan, 136 N. C., 628; but they are no more authorities for the contention than they were for a similar one in S. v. Price, supra.

The charge, in its entirety, was exceedingly fair and favorable to the prisoner. He has had the benefit of every principle of law to which he was legally entitled, and the evidence was fully explained to the jury in its different bearings, and in every possible phase of it.

A careful review of the record convinces us that no error was committed at the trial.

No error.