State v. DowneyAnnotate this Case
117 S.E.2d 39 (1960)
253 N.C. 348
STATE v. Percelle DOWNEY.
Supreme Court of North Carolina.
November 23, 1960.
*43 John Kerr, Jr., Warrenton, for defendant-appellant.
Atty. Gen. T. W. Bruton, Asst. Attys. Gen., H. Horton Rountree and Glenn L. Hooper, Jr., for the State.
WINBORNE, Chief Justice.
The first question presented by the defendant as the main question is whether or not the trial court erred in refusing to grant defendant's motion for judgment as of nonsuit. In this connection the defendant pleads self-defense, and contends that the evidence offered by the State exculpates him on this plea.
Taking the evidence and the facts stipulated in the light most favorable to the State, the conclusion does not follow as a matter of law.
In this connection it is appropriate to note: (1) Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. (2) Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. And (3) manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation.
Moreover, it is well established in this State that the intentional killing of a human being with a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree. And when this implication is raised by an admission or proof of the fact of an intentional killing, the burden is on the defendant to show to the satisfaction of the jury facts and circumstances sufficient to reduce the homicide to manslaughter or to excuse it. See State v. Utley, 223 N.C. 39, 25 S.E.2d 195, and cases cited. Hence motion to nonsuit is not tenable. See State v. Vaden, 226 N.C. 138, 36 S.E.2d 913; State v. Brooks, 228 N.C. 68, 44 S.E.2d 482; State v. Artis, 233 N.C. 348, 64 S.E.2d 183; State v. Brannon, 234 N.C. 474, 67 S.E.2d 633.
Indeed there is evidence of flight by defendant after the shooting of deceased. This is competent to be considered by the jury in connection with other circumstances in passing upon the question of guilt. See State v. Payne, 213 N.C. 719, 197 S.E. 573, and cases cited. Also State v. Peterson, 228 N.C. 736, 46 S.E.2d 852.
*44 Moreover, when the sufficiency of the evidence offered on the trial in Superior Court is challenged by motion for judgment as of nonsuit under G.S. § 15-173, the evidence is to be taken in the light most favorable to the State.
Nevertheless, when the State, as in the case in hand, has introduced in evidence the statement of defendant, the statement is presented as worthy of belief. And when such statement tends to exculpate defendant, he is entitled to whatever advantage it affords, even to an acquittal when it is wholly exculpatory. However, the State by offering the statement of defendant is not precluded from showing that the facts were different. See State v. Simmons, 240 N.C. 780, 83 S.E.2d 904, and cases cited.
Defendant also presents for decision on this appeal question as to whether the trial court erred in refusing to set the verdict aside as being against the greater weight of the evidence. This is without merit for that in North Carolina a motion to set aside a verdict as contrary to the weight of the evidence is addressed to the sound discretion of the trial court, and the refusal of the court to grant same is not subject to review on appeal. See State v. Chapman, 221 N.C. 157, 19 S.E.2d 250; State v. Reddick, 222 N.C. 520, 23 S.E.2d 909.
Defendant also presents question in brief filed on this appeal whether under the evidence in this case sentence imposed upon the defendant, that is, a term of from fifteen to twenty years in State Prison, is excessive and oppressive, and an infliction of cruel or unusual punishment within the meaning of Art. 1, Sec. 14, of the State Constitution.
But when a person is convicted of murder in the second degree the punishment prescribed by statute, G.S. § 14-17, is imprisonment in the State Prison for not less than two years nor more than thirty years.
In this connection this Court has held uniformly that a sentence is not excessive or cruel or unusual when within the limits prescribed by the Legislature. It is within the discretion of the judge, and not subject to review on appeal. State v. Woodlief, 172 N.C. 885, 90 S.E. 137; State v. Fleming, 202 N.C. 512, 163 S.E. 453; State v. Brackett, 218 N.C. 369, 11 S.E.2d 146; State v. Daniels, 197 N.C. 285, 148 S.E. 244.
Indeed this headnote in State v. Wilson, 218 N.C. 769, 770, 12 S.E.2d 654, epitomizes the holdings of this Court in this manner: "Where a statute prescribing the punishment for a statutory offense fixes limitations upon the severity of the punishment, the court has discretionary power to fix the punishment within the limitations prescribed, and a sentence of imprisonment for the maximum period allowed by the statute cannot be held excessive or in violation of the constitutional rights of defendant."
Other exceptions shown in the record of case on appeal have been given due consideration, and in them error is not made to appear.
It is a well settled rule in North Carolina that the burden is upon the appellant to show prejudicial error amounting to a denial of some substantial right and in the absence of such showing there is no reversible error. Kennedy v. James, 252 N. C. 434, 113 S.E.2d 889.
Therefore since error in the trial court is not made to appear, there is