The evidence offered by the State at the trial of this action was admitted without prejudicial error. This evidence tended to show that "William Marvin Mangum was stabbed and fatally wounded on the highway in Union County, on 1 June, 1946, at approximately eleven o’clock a.m., and while returning to his home from delivering milk in Monroe, North Carolina, and while he was on the dirt road to his own house, a little less than a quarter mile from his home, was killed by being stabbed with some sharp instrument, so that he bled to death. His pocketbook, containing $84.87, was missing. The defendant Benny Montgomery was indicted for the crime of murder in the first degree and was tried at the August Criminal Term of the Superior Court of Union County on said indictment. The jury returned a verdict of guilty of murder in the first degree, and, from judgment of death pronounced thereon, the defendant appealed to the Supreme Court.
There are five exceptive assignments of error in the record, namely: (1) To the court’s overruling of the defendant’s demurrer to the State’s *102evidence as to tbe capital crime; (2)- To the court’s overruling defendant’s motion for a judgment as of nonsuit at the close of the State’s evidence; (3) To the court’s overruling defendant’s motion for judgment as of nonsuit at the close of all the evidence; (4) To the court’s overruling defendant’s motion to set aside the verdict and order a new trial; (5) To the court’s pronouncing judgment as set forth in the record.
The evidence was sufficient to sustain the indictment and the verdict of “guilty of murder in the first degree.” The credibility of the witnesses and the probative effect of the evidence were for the determination of the jury.
The evidence offered by the State supports the contention that the defendant is the man who stabbed and fatally wounded William Marvin Mangum on the 1st day of June, 1946. It is in evidence that the defendant admitted he had stabbed the deceased with a knife. There was no error in the refusal of the court to dismiss the action as in case of nonsuit at the close of the State’s evidence. The defendant offered none. No valid objection to the evidence was made by the defendant during the trial and there was no assignment of error in the defendant’s appeal to this Court based upon the admission or rejection of evidence. Therefore, it is taken that no error was committed in the taking of the evidence, nor was there any assignment of error in the charge of the court to the jury. Therefore, it is taken that the jury was properly instructed by the court in respect to the verdict which they should return upon the facts as they might find them to be from the evidence. The charge was full, fair and correct. The verdict as returned by the jury cannot be set aside or disturbed by this Court; it must stand as returned. S. v. Jackson, 199 N. C., 321, 154 S. E., 402.
There is error, however, in the form of the judgment in this action. It does not appear on the face of the judgment that the defendant has been convicted of a crime which is punishable by death under the law of this State. It appears only that the defendant has been convicted of murder. It does not appear that he has been convicted of murder in the first degree. The crime of murder in the first degree is punishable by death, while all other kinds of murder are punishable by imprisonment in the State’s Prison. G. S., 14-17. The judgment appearing in the record is not sufficient to justify the execution of the defendant by the warden of the State’s Prison. It should appear on the face of the judgment, which is alone certified to the warden, that defendant has been convicted of a capital felony. G. S., 15-188; G. S., 15-189; G. S., 15-190.
The action must be remanded to the Superior Court of Union County, to the end that a proper judgment on the verdict as returned by the jury, may be rendered. S. v. Langley, 204 N. C., 687, 169 S. E., 405. It is so ordered.
Bemanded.