Tbe State’s evidence was quite sufficient to make out a case of murder in tbe'first degree. The defendant’s evidence, on the other hand, supported his version of the matter. The jury has returned a capital verdict and rejected the defendant’s plea of self-defense in a trial free from reversible error. We can do none other than uphold the judgment.
Berry Joyner was called as a witness for the prosecution. He was asked on cross-examination “if he had not been accused of breaking up three homes before this time?” Objection sustained; exception. While the ruling on this objection might well have been otherwise, it does not appear that it had any appreciable effect on the verdict or that baneful consequences resulted therefrom. To work a new trial the appellant must show that he was prejudiced by the court’s action. Error alone, or inconsequential error, will not suffice. S. v. Creech, 229 N.C. 662; S. v. Gibson, 229 N.C. 497.
Sometime after the jury had retired to consider the case, they returned to ask the Judge to state again the precise meaning of premeditation. This was done with exactitude and aptly applied to the facts of the case. The defendant now complains that this further charge was given in the absence of his attorney. The record fails to show that the requested instruction was given in the absence of counsel for the defendant. We can know judicially only what appears on the record. Ericson v. Ericson, 226 N.C. 474, 38 S.E. 2d 517. Hence, no irregularity in this respect has been made manifest.
True it-is, that in a capital case the accused is entitled to have his counsel present at every stage of the proceeding, and this right is usually observed. Conversely, however, it is the duty of counsel, pending the consideration of the ease, to observe what transpires during the regular sittings of the court, and to -arrange for his notification should occasion arise. The presumption of regularity prevails in the absence of a contrary showing. S. v. Harris, 204 N.C. 422, 168 S.E. 498. Presumably, the instruction was given at a regular session of the court. S. v. Stanley, 227 N.C. 650, 44 S.E. 2d 196. Thus, the absence of counsel when the instruction was given, even if established, would not perforce result in a new trial. S. v. Denton, 154 N.C. 641, 70 S.E. 839. See Burns v. Laundry, 204 N.C. 145, 167 S.E. 573, and cases there cited. As basis for an exceptive assignment of error, the point should have been raised in the trial court and a finding and ruling made thereon.
On the record as presented, the verdict and judgment will be upheld.
No error.