State v. Merrick, 171 N.C. 788 (1916)

April 12, 1916 · Supreme Court of North Carolina
171 N.C. 788


(Filed 12 April, 1916.)

1. Homicide — Indictment—Less Offense — Malice —Passion—Cooling Time— Manslaughter.

Manslaughter is the unlawful killing of another without malice, and may occur in instances where the killing has been done by reason of sudden anger aroused by provocation which the law deems adequate and sufficient to displace malice, and committed so soon after the provocation that a sufficient time has not elapsed for passion to subside and reason return to the accused.

2. Same — Trials—Matters of Law — Questions for Jury.

Upon the trial for a homicide, the length of time after the provocation before the killing necessary to reduce the offense to manslaughter is a matter of law for the courts, and only the existence or nonexistence of the facts controlling its application in a given case is for the jury.

*7893. Homicide — Manslaughter—Evidence — Instructions — Appeal and Error— Statutes.

Upon a trial for murder a verdict for a less grade of crime is permitted, and where the indictment is for murder, and there are facts in evidence tending to reduce the crime to manslaughter, it is reversible error for the trial judge not to submit this phase to the jury, under a proper charge, though not requested by the defendant to do so, and although he has offered to submit to a verdict of murder in the second degree, which has been refused. Revisal, sec. 535.

4/ Homicide — Manslaughter—Evidence.

Upon this trial for a homicide there was evidence tending to show that the prisoner, a lad, was sitting in a “coca-cola plant,” with the permission of the propriet'ors, which was divided midway -by a partition with a communicating door, when the deceased, a fine specimen of physical manhood, and an employee, came in, commenced an altercation over a hitching rein, shoved the defendant from a box on which he was sitting and struck him twice; that defendant ran into the back room, returned for his hat, and again returned with a gun he had borrowed to shoot birds with, loaded with No. 6 shot, then- cursed the deceased and shot and killed him. There was testimony that the defendant returned with the gun “in no time,” and again, from one to two or three minutes, the witnesses not being definite in their statements. Held,, evidence sufficient to be submitted to the jury upon the .question of the offense of manslaughter.

5. Homicide — Submission—Manslaughter—Verdict—Appeal and Error.

Upon a trial for a homicide, the accused offered to submit to a verdict of murder in the second degree, which was refused, and thereafter evidence was developed which tended to reduce the grade of the offense to manslaughter. This phase of the case was not submitted by the judge to the jury, which rendered a verdict of guilty of murder in the first degree. Held, the error of the court was not cured by the verdict, and was reversible error.

Allen, J., dissenting.

Clakk, C. J., concurring in the dissenting opinion.

INdictmeNt for murder of Leon B. Hudson, deceased, tried before Daniels, J., and a jury, at November Term, 1915, of New Hanover.

Tbe evidence on the part of the State showed that on 31 August, 1915, deceased was killed by a gunshot wound, intentionally inflicted by defendant. There was no testimony offered by defendant, and, on the facts in evidence, the jury rendered a verdict of guilty of murder in the first degree. Sentence imposing the death penalty, and defendant appealed and, pursuant to exceptions duly entered,' among other things, made assignments of error in effect as follows:

1. That the court in its charge to the jury entirely failed to present the question of manslaughter, when there were facts in evidence permitting an inference of manslaughter and properly requiring that this view of the case be considered by the jury.

*7902. Tbat tbe court in its charge entirely failed to give any explanation of tbe question or significance of “cooling time” in reference to its effect on tbe crime of manslaughter, when there were facts in evidence requiring tbat such question be referred to and properly explained.

3. Tbat tbe court in its charge affirmatively restricted tbe jury to tbe consideration of tbe question of murder in tbe first and second degrees, when there were facts in evidence which permitted and required tbat tbe question of manslaughter should be also considered and passed upon.

4. Tbat tbe court in its charge to tbe jury presenting tbe issue, among other things, said: “So, gentlemen, tbe question for you, and tbe only question, according to tbe contentions of tbe State and defendant, is this: 'Did tbe defendant commit tbe act with deliberation and premeditation?’” thus confining tbe deliberations of tbe jury to tbe question of murder in tbe first and tbe second degrees, when there were facts in evidence tending to establish tbe crime of manslaughter and which should have been also submitted.

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

M. J. Bellamy and Burke H. Bridgers for defendant.

Hoke, J.

In general terms, manslaughter is said to be tbe unlawful killing of another without malice, an instance of tbe crime so defined being where one unlawfully kills another by reason of tbe anger suddenly aroused by provocation which tbe law deems adequate; anger naturally aroused from such provocation and tbe killing being done before time has elapsed for “passion to subside and reason to reassume her sway.” In such case tbe anger so aroused is held to displace malice and will reduce tbe unlawful homicide to the grade of manslaughter. S. v. Baldwin, 152 N. C., 822; S. v. Hill, 20 N. C., 629; Maher v. The People, 10 Mich., 212. Speaking to this subject in Maher’s case, Christiancy, J., delivering tbe opinion, said: “But if tbe act of killing, though intentional, be committed under tbe influence of passion or in beat of blood, produced by an adequate or reasonable provocation and before a reasonable time has elapsed for tbe blood to cool and reason to resume its habitual control, and is tbe result of tbe temporary excitement by which tbe control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition, then tbe law, out of indulgence to tbe frailty of human nature, or, rather, in recognition of tbe laws upon which human nature is constituted, very properly regards tbe offense as of a less heinous character than murder, and gives it tbe designation of manslaughter.” And again, in same case: “Tbe principle involved in tbe question, and which I think clearly deducible from tbe majority of well considered cases, would seem to suggest as tbe true general rule tbat reason should, at tbe time of tbe *791act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion rather than judgment.”

In regard to the time to be allowed in the proper application of the principle, usually termed “cooling time,” it is said to be the trend of the more recent decisions to hold that the question should be determined by the jury under the relevant facts of each case, Clark on Criminal Law, p. 228; but in this jurisdiction the rule has thus far prevailed that the question of cooling time is one of law for the courts, and only the existence or nonexistence of the facts controlling its application in a given case is for the jury. S. v. Moore, 69 N. C., 267.

These being the positions appertaining to the crime of manslaughter and more directly relevant to the question presented, it has been held with us in numerous cases, and the position is in accord with authoritative decision elsewhere, that where in an indictment for murder the law in this State permitting a verdict for a lesser grade of the crime, if there are facts in evidence tending to reduce the crime to manslaughter, it is the duty of the presiding judge to submit this view of the ease to the jury under a correct charge, and his failure to do so will constitute reversible error, though the defendant may have been convicted for the higher offense. S. v. Clyde Kennedy, 169 N. C., 289; S. v. Kendall, 143 N. C., pp. 659-664; S. v. White, 138 N. C., pp. 704-715; S. v. Foster, 130 N. C., pp. 666-673; S. v. Jones, 79 N. C., 630; S. v. Matthews, 148 Mo., 185; Baker v. The People, 40 Mich., 411.

In Kendall’s case, supra, it was held: “It is a principle very generally accepted that on a charge of murder, if there is any evidence to be considered by the jury which tends to reduce the crime to manslaughter, the prisoner, by proper motion, is entitled to have this aspect of the case presented under a correct charge, and if the charge given on this question is incorrect, such a mistake will constitute reversible error, even though the prisoner should be convicted of the graver crime, for it cannot be known whether, if the case had been presented to the jury under a correct charge, they might not have rendered the verdict for the lighter offense.”

In Foster’s case, supra, the present Chief Justice, delivering the opinion, said: “If it had been clearly explained to the jury what constituted murder in the second degree, of which, through his counsel, he had admitted himself to be guilty, it may be that the jury would have coincided with that view; but, in the absence of instruction on that offense, with only the issue of murder in the first degree placed before them with instructions only as to that offense, with evidence of the homicide, it may well be that the jury held against the prisoner, that he was guilty, simply because they were not informed as to the constituent *792elements of tbe lesser offense”; and for this omission a new trial was allowed, tbe prisoner baying been convicted of murder in tbe first degree.

In S. v. Jones, a conviction for tbe capital crime of murder, it was beld error to exclude from tbe jury tbe view of manslaughter, there being evidence tending to establish such crime.

In tbe present case there was no claim or suggestion of any previous animosity existent between tbe prisoner and tbe deceased, and tbe facts in evidence on tbe part of tbe State tended to show (tbe defendant offering no testimony) that tbe homicide occurred on 31 August, 1915, in tbe city of Wilmington in tbe front room of tbe “coca-cola plant” of A. B. Merritt, about 4 o’clock p. m.; that this plant consisted of a bouse about 30 feet wide and 60 feet long, divided midway by a partition; that a door opened from tbe front to tbe back compartment and a large door led into a back yard, across which was a coal and wood plant operated by tbe same proprietor; that tbe defendant was a band doing work in tbe wood yard when needed, but on that afternoon there was no work to be given him, and be was over in tbe coca-cola department, doing nothing, and was sitting on a crate in tbe front compartment talking with one of tbe employees. So far as appears, be was there without objection, for tbe witness Parker, who seems to have bad immediate charge, says that be bad made no objection to tbe boy being there, and while tbe proprietor testifies that “be bad given Hudson authority,” be does not say authority for what, and immediately adds: “I bad intended Parker to keep tbe boys away from tbe place, and bad told Hudson to use bis influence with Parker to keep them away.” Tbe boy, then, was there without objection being made known to him, and while sitting down, as stated, talking to one of tbe bands, deceased, who drove a delivery wagon for tbe plant, came into tbe compartment and asked tbe defendant where bis bitching rein was. Defendant replied, “It is my hitching rein.” Hudson replied, “It’s no such a damn thing,” and, starting towards tbe boy, said: “You get out of here.” Tbe boy replied, “Mr. Hudson, you don’t own this plant, and you have no right to put me out.” Hudson, said to be a fine specimen of manhood, weighing 165 pounds, continued to advance, caught tbe boy, tbe defendant, and pushed or shoved him off tbe box and, two of tbe witnesses say, struck him twice. Tbe defendant, getting loose, ran into tbe back room, returned and got bis bat, which bad fallen off bis bead; went again into tbe back room and, returning with a gun, called to Hudson: “You are a G-d-son of a bitch!” and fired and killed him; that tbe boy'bad borrowed tbe gun to bunt birds, rice birds or coots, which were killed for eating at that time of year, and bad tbe gun somewhere in tbe back room; that it was loaded with shot something like No. 6. Four or five of tbe employees, testifying to the occurrence, said that when tbe boy went out tbe first time be stayed three or four minutes, and, returning for bis *793bat, went out and stayed tbe same length of time before be returned with tbe gun and fired, killing tbe deceased. One of these witnesses, however, on cross-examination, said that be would not say definitely that these periods when tbe boy was out of tbe room were three or four minutes; it might have been “one minute”; and again: “That it didn’t seem like no time.” Two others of these eye-witnesses who bad testified that tbe boy was out of the room “two or three minutes each time,” when asked on cross-examination if be went out of tbe building to get tbe gun, answered: “No; be didn’t have time for that.”

Upon these, tbe facts chiefly relevant and controlling on tbe questions presented by tbe appeal, we are of opinion that there was prejudicial error committed in excluding from tbe jury any and all consideration as to tbe crime of manslaughter, and restricting their deliberations to tbe questions of murder in tbe first and second degrees. If tbe defendant, on being accused of wrongfully taking tbe cheek rein of deceased, then jerked or shoved from tbe box and struck twice, bad immediately fired and killed deceased — killed in tbe passion then aroused by tbe assault and battery upon him — tbe crime would have been reduced to manslaughter, S. v. Sizemore, 52 N. C., 206; and if on being so assaulted be bad rushed into tbe back room, returned for bis bat, again went out, returning immediately with tbe gun, and fired and killed tbe deceased— killed in tbe anger aroused by tbe blows be bad just received and so immediately thereafter that “there was not sufficient time for passion to subside and reason to reassert its sway” — it would still be manslaughter, and tbe relevant time that did elapse between tbe provocation and tbe homicide is left too indefinite and uncertain by tbe witnesses for the court to rule as a matter of law that there is no element of manslaughter involved in tbe case.

We all know bow prone witnesses are to inaccurately express themselves when stating tbe time that has passed in a given case. In an extended experience on tbe nisi prius Bench and at tbe Bar, tbe writer has rarely beard a witness give a multiple of time less than a minute. They not infrequently say minutes and mean seconds, and, in tbe presence of a great tragedy like this, tbe mind of an average witness is not likely to take due note of time or to express it accurately when testifying at some later period; and when to this is added tbe fact that one of tbe principal witnesses has said, on cross-examination, that defendant was out of tbe room “no time,” and two others that be wasn’t gone long enough to leave the rear room, we are confirmed in tbe view that tbe time that elapsed must be referred to tbe jury and tbe ruling as to cooling time made on tbe facts as they may find them.

It is urged in support of tbe proceedings below that the jury having convicted tbe defendant of murder in first degree, they have thereby necessarily excluded any and every view of the evidence tending to show *794manslaughter, and therefore the failure to submit the cause in that aspect should not be considered as prejudicial error, and S. v. Lipscomb, 134 N. C., 689, and other cases are cited as authority for the position.

As we have endeavored to show, it is an established principle in our criminal procedure that, on conviction of murder, if there are facts in evidence tending to establish a lesser grade of the offense, it is reversible error not to have presented the case to the jury in that aspect, for it cannot be determined how and to what extent it may have influenced the verdict of the jury as rendered; and there is nothing in the decision in Lipscomb’s case that militates against the position. In that case the prisoner and deceased were sitting down in the latter’s home arguing on the Scriptures, and the prisoner, becoming irritated by the course of the discussion, stepped outside, got his gun, and, returning, shot and killed the deceased as- he sat in his chair. In explanation, defendant testified that he was afraid of deceased, and thought he was a conjurer and was using his powers against defendant or his family. The case was submitted on the questions of murder in the first and second degrees, and there was no error in the charge on either question. Associate Justice Walicer, after upholding the conviction on that ground, and in reference to an exception whether presumption of malice, arising at common law from an intentional killing, had been rebutted, said that “if there was error in this, it could not have prejudiced the prisoner, the jury having found him guilty of willful, premeditated murder.” There were no facts in evidence permitting an inference of manslaughter; none to rebut the presumption of malice existent from an intentional killing, and the comment, which was only made by way of suggestion, was not intended nor should it be construed to reverse or trench upon an established position of our criminal law to which the learned and careful judge has often given his full adherence and well considered support. S. v. Clyde Kennedy, 169 N. C., 288.

In S. v. Munn, 134 N. C., 680, the facts of the case are not stated in the opinion, but, on examination of the original record, it appears that the court charged fully on the question of manslaughter, as favorable to the prisoner certainly as he had any right to ask, and no exceptions were made to the charge in this aspect of the case. And referring to the other cases cited in support of the conviction, in S. v. Johnson, 161 N. C., 264, there was no error in the charge as given, and it was held, Associate Justice Brown delivering the opinion: “That there was not a scintilla of evidence upon which a verdict of manslaughter could have been based.” In S. v. Teachey, 138 N. C., 598, the same ruling was made: “That no element of manslaughter was presented.” And on the facts in evidence the same position seems to be fully justified in S. v. Bowman, 152 N. C., 817. See S. v. Chavis, 80 N. C., 353. In none of these cases, therefore, is there direct decision that where the facts *795of tbe case present tbe question of manslaughter a court is justified not only in omitting any and all reference to tbis feature of tbe charge, but in effect positively withdrawing its consideration from tbe jury.

Again, it is insisted for tbe State that there was not only no prayer for instructions presenting tbe view of manslaughter, but that a perusal of tbe record tends to show that tbe course of tbe trial, by which tbe consideration was restricted to tbe two degrees of murder, was not resisted, but acquiesced in by counsel for tbe prisoner.

It is held in many well considered eases that tbe rule denying reversible error for an omission to charge on a given phase of a cause does not prevail to the same extent in criminal as in civil cases, and there is high authority for tbe position that, in cases of homicide, a judge is required to charge the law correctly, even when contrary to the positions taken by counsel. S. v. Stonum,, 62 Mo., 597; Myers v. Commonwealth, 83 Pa. St., pp. 131-143. In Stonum’s case it was held, “That in all criminal cases it is the duty of the court to instruct the jury as to the law. If the instructions offered are objectionable, the court should proceed to give such as the law requires”; and in Myers v. The Commonwealth, Paxson, J., concurring, said: “I hold it to be the duty of a judge, trying a man for his life, to charge fully upon the law applicable to the facts, and this without regard to points presented by counsel. The rule that a judge is not to be convicted for error for what he omits to say, unless his attention is called to the subject by a request to charge, is well enough for civil cases, but ought not, in my judgment, to be applied in a capital case. The prisoner has a right to have the jury properly instructed upon every question of law legitimately raised by the evidence. This right he cannot waive, nor can his counsel do so for him.” And further, the authorities are at one in holding that, both in criminal and civil causes, a judge in his charge to the jury should present every substantial and essential feature of the case embraced within the issue and arising on the evidence, and this without any special prayer for instructions to that effect. Charged with the duty of seeing that impartial right is administered, it is a requirement naturally incident to the great office he holds and made imperative with us by statute law. Revisal, 535: “He shall state in a plain and correct manner the evidence in the ease and explain the law arising thereon,” and a failure to do so, when properly presented, shall be held for error. When a judge has done this, charged generally on the essential features of the case, if a litigant desires that some subordinate feature of the cause or some particular phase of the testimony shall be more fully explained, he should call the attention- of the court to it by prayers for instructions or other proper procedure; but, as stated, on the substantive features of the case arising on the evidence, the judge is required to give correct charge concerning it. *796 S. v. Foster, 130 N. C., 666; S. v. Barham, 82 Mo., 67; Carleton v. State, 43 Neb., 373; Simmons v. Davenport, 140 N. C., 407.

In Foster’s case tbe Court, among other things, held, that “(4) Admissions of counsel made on trial as to any fact or law will not be taken as true where it plainly appears that they are not true. (5) Where a person is convicted of murder in the first degree, it is error if' the court failed to instruct as to murder in the second degree, even though counsel admitted defendant to be guilty of murder in the second degree. (6) On a prosecution for .murder it is the duty of the trial judge to instruct as to murder in the second degree, even though no request is made therefor.”

In Barham’s case, supra: “It is the duty of the court to instruct the jury as to all grades of homicide to which the facts in evidence apply.”

In Carleton’s case the principle is very correctly stated as follows: “It is the duty of the court to instruct the jury on the law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements have the effect of withdrawing from the consideration of the jury an essential issue or element of the case is erroneous; but when the jury is instructed generally upon the law, and when the instructions given do not have the effect above stated, then error cannot be predicated upon the failure of the court to charge upon some particular phase of the case, unless a proper instruction was requested by the party complaining.” And in Simmons v. Davenport, supra, Walker, J., said: “The rule which requires that a complaining party should ask for specific instructions if he desires a case to be presented to the jury by the court in any particular view does not, of course, dispense with the requirement of the statute that the judge shall state in a plain and correct manner the material portions of the evidence given in the case and explain the law arising thereon. Revisal, sec. 535.”

In the case presented and under our statute, on a bill of indictment for murder, there may be a conviction of murder in the first or second degree, or manslaughter, as the facts may appear; and where, as we have seen, there is evidence tending to establish the crime of manslaughter, it is reversible error to exclude its consideration from the jury.

Defendant is entitled to a new trial, that the issue as to his guilt shall be properly submitted on the questions of murder in the first degree or murder in the second degree or of manslaughter.

On the record as it now stands, there are no facts in evidence tending to show self-defense.

In so far as the “tender of the plea of guilty of murder in the second degree is concerned,” also urged against the prisoner, “it would seem to be a hard measure of justice that, after rejecting his plea and putting him on trial for his life, his offer should be used to deprive him of the right to have his cause tried according to the law of the land.”

New trial.

*797AlleN, J.,

dissenting: Tbe prisoner bas been convicted of murder in tbe first degree, and a new trial is ordered by tbe majority of tbe Court upon tbe ground alone that tbe evidence presents a phase of manslaughter, and that this was not submitted to tbe jury.

I cannot agree to this disposition of tbe case.

Tbe record states that after tbe conclusion of tbe evidence, “tbe defendant, through bis counsel, tendered tbe State a plea of guilty of murder in tbe second degree,” and that tbe plea was rejected.

His Honor also charged tbe jury, in tbe presence of tbe prisoner and bis counsel, and without any suggestion that be was stating tbe contentions of tbe parties incorrectly, that “In this case tbe defendant admits killing with a deadly weapon; that be intentionally shot tbe deceased with a deadly weapon, and that tbe deceased died from tbe wound. He contends that you ought to render a verdict of murder in tbe second degree. His counsel ask you to convict him of murder in tbe second degree, but they ask you not to convict him of murder in tbe first degree, because they contend that there is no evidence which would justify you in finding tbe killing was done with deliberation and premeditation.”-

There was no request to charge upon manslaughter.

It therefore appears that tbe case was tbe State and tbe defendant upon tbe theory that tbe defendant was guilty of murder in tbe first or second degree, and that tbe defendant admitted that be was guilty of murder in tbe second degree; and, if so, a failure to charge on manslaughter was not prejudicial to tbe defendant.

Tbe Court says, however, that this is an admission of law, and is not binding on tbe Court; but to my mind it is an admission of fact.

Tbe distinguishing feature between murder in tbe second degree and manslaughter is malice, and no one knew so well as tbe prisoner and bis counsel whether tbe killing was with malice or under passion caused by legal provocation, and as I understand tbe plea tendered and tbe admission, it was tantamount to saying that tbe prisoner killed tbe deceased maliciously and not from sudden passion; and this is a fact. Foster’s case, 130 N. C., 666, so far from militating against this position, confirms it.

A new trial was ordered in that case because of tbe erroneous charge that flight was a circumstance to be considered on tbe question of premeditation and deliberation.

' Tbe admission of counsel that tbe prisoner was guilty of murder in tbe second degree is, I think, dealt with as an admission of fact, and binding, and tbe further error pointed out is not in failing to charge on manslaughter, but on murder in tbe second degree, which the Court says was necessary in order for tbe jury to understand tbe elements entering into murder in tbe first degree.

*798Again, I tbink the prisoner has not been prejudiced by the failure to charge on manslaughter because it is not conceivable that the jury would have convicted of manslaughter under the most favorable charge when counsel for the prisoner were asking them to convict of murder in the second degree, and when in response to that plea they said they were satisfied beyond a reasonable doubt that the killing was with premeditation and deliberation.

Clark, J., says in S. v. Munn, 134 N. C., 681: “The point counsel wishes to present, though not excepted to, that there was error in the ’ charge as to mitigation from murder in the second degree, would not be before us even if it had been excepted to, for the reason that the jury found, upon the very full and careful charge of the court as to the difference between murder in the first and second degree, that beyond all reasonable doubt the prisoner slew the deceased willfully, deliberately, and with premeditation, and was guilty of murder in the first degree. The State has thus satisfied them of facts raising the crime above murder in the second degree, which only was presumed from the killing with a deadly weapon. If there were error in the charge as to mitigation below murder in the second degree, it was therefore immaterial error.” Walker, J., in S. v. Lipscomb, 134 N. C., 691: “But if there had been error in the instruction to which exception was taken, we do not see how the defendant could have been prejudiced thereby, for the jury found that he killed his victim intentionally and willfully and with premeditation and deliberation, and it could make no difference, with that fact found by the jury from the evidence, whether the presumption of the common law as to malice arising from the use of a deadly weapon had been rebutted or not. Prejudice could not come from such a charge, if erroneous, unless the defendant had been convicted of murder in the second degree and there had been evidence of facts or circumstances in mitigation or excuse of the killing. We have said there was none.” Brown, J., in S. v. Teachey, 138 N. C., 597: “The prisoner excepts because the court failed to present to the jury in this connection a view of manslaughter. The prisoner was convicted of murder in the first degree, and we do not see how it was prejudicial to him because his Honor failed to charge the jury on the question of manslaughter. S. v. Munn, 134 N. C., 680; S. v. Lipscomb, ibid., 689.” Walker, J., in S. v. Bowman, 152 N. C., 821: “The jury having found the actual facts to be that a conspiracy had been -formed between the defendants, they will not be permitted now to aver that they killed the deceased in a heat of passion or upon a legal provocation, or for any other reason which would reduce the crime to the degree of manslaughter. It therefore follows logically that any error which the court may have committed in its charge, as to that offense, upon a hypothetical state of facts, which the jury, by their verdict, have repudiated, is immaterial and harmless, even if such *799error was committed. S. v. Munn, 134 N. C., 680.” Brown, J., in S. v. Johnson, 161 N. C., 266, speaking of an exception to a charge on manslaughter : “As the prisoner was convicted of the greater offense of murder in the first degree, this exception is not material.”

While it is true that in several of these cases it is said there was no evidence of manslaughter, the excerpts relate to failure to instruct on that degree of homicide, and the opinion of the Court in each is that such error is immaterial when the jury has convicted of the higher crime.

It is also doubtful if there is any evidence of manslaughter. The prisoner was sitting in a building 30 x 60 feet, with a partition about the middle, when the deceased came in. An altercation ensued, and the deceased either struck or shoved the defendant, and caused his cap to fall off. No weapon was used and so serious damage inflicted. The defendant left the front room and went to the rear of the building. He returned immediately, picked up his cap, and said to the deceased, “That’s all right. I’ll get you.” He went to the rear of the building, returned immediately with a gun, and saying to the deceased, “You are a G— d— s— of a b — ■!” fired the shot which caused the death of the deceased.

Glare, C. J., concurs in this opinion.