State v. Wall

Stacy, O. J.

The announcement of the solicitor, made before entering upon the trial, that the State would not ask for a verdict of more than murder in the second degree, was tantamount to taking a nolle prosequi on the capital charge.

S. v. Gregory, 203 N. C., 528 , 166 S. E., 387 ;

S. v. Brigman, 201 N. C., 793 , 161 S. E., 727 ;

S. v. Spain, ibid., 571, 160 S. E., 825 ;

S. v. Hunt, 128 N. C., 584 , 38 S. E., 473 .

In this state of the record, the testimony of the witness, Shackie Belton, even if regarded as indefinite or too remote in point of time, could not be held for reversible error, though admitted over objection of defendant, for the element of premeditation and deliberation, necessary to be shown on the capital charge, had been removed from the case *661 by tbe action of tbe solicitor, and botb tbe unlawfulness of tbe homicide and malice on tbe part of tbe defendant were presumed from tbe intentional billing of tbe deceased witli a deadly weapon.

S. v. Bailey, ante, 255.

Nor can tbe introduction in evidence, and exhibition to tbe jury, of deceased’s bloody clothes be regarded as harmful or erroneous. It is not a valid ground of objection to evidence that it tends to prove tbe fact in question more conclusively when tbe article to which it refers is exhibited, instead of being left to tbe description of witnesses. Such objection fails to -take into account 'the difference between tbe strength of evidence and its competency.

S. v. Westmoreland, 181 N. C., 590 , 107 S. E., 438 ;

S. v. Vann, 162 N. C., 534 , 77 S. E., 295 .

Tbe remaining exceptions discussed on brief present no new question of law or one not heretofore settled by a number of decisions. In no view of tbe case could tbe demurrer to tbe evidence have been sustained; and tbe charge is free from valid objection. Tbe verdict and judgment will be upheld.

No error.