State v. Duncan

CoNNOR, J.

At the trial of this action the defendant was convicted on both counts in the consolidated indictment — on the first count, of murder in the second degree, and on the second count of manslaughter. He was sentenced by the court to imprisonment in the State’s Prison, on each verdict, for a term of not less than fifteen or more than twenty years. It is not ordered in the judgment that one term shall commence at the expiration of the other. The terms of the sentences on both convictions are concurrent. In In re Black, 162 N. C., 457 , 78 S. E., 273 , it is said: “It seems to be well settled by many decisions and with entire uniformity that where a defendant is sentenced to imprisonment on two or more indictments on which he has been found guilty, sentence may be given against him on each successive conviction; in the case of the sentence of imprisonment, each successive term to commence at the expiration of the term next preceding. It cannot be urged against a sentence of this kind that it is void for uncertainty; it is as certain as the nature of the matter will admit. But the sentence must state that the latter term is to begin at the expiration of the former; otherwise, it will run concurrently with it.”

In view of this principle, which is applicable to the judgment in the instant case, it would seem that a new trial on the second count in the indictment would be futile. The defendant does not contend on his appeal to this Court that there was error in the trial of the issue involved in the first' count, or that there was no evidence to support the contention of the State on the second count. He admits that he killed Jarvis Stephens with a deadly weapon, as alleged in the second count, but contends that the homicide was in his self-defense. He excepted to the instruction of the court to the jury, in effect, that if the jury should find the facts to be as the defendant, as a witness in his *318 own behalf, bad testified, they should find that the defendant is guilty of manslaughter, at least, on the second count. This exception cannot be sustained.

It does not appear from the testimony of the defendant as set out in the case on appeal that he shot and killed Jarvis Stephens, as charged in the second count, because of his apprehension that the deceased was about to kill him, or do him serious bodily harm. The defendant’s testimony shows that he shot and killed the deceased, immediately after he had shot and fatally wounded Jeff Moore and while he was beside himself with anger and passion. There is nothing in defendant’s evidence which shows any necessity, real or apparent, for the homicide, and for that reason there was no error in the instruction which the defendant assigns as error. The judgment is affirmed.

No error.