STATE
v.
HOWELL.
No. 579.
Supreme Court of North Carolina.
December 16, 1953.*237 Gilbert Medlin, Joe M. Cox, Laurinburg, Pittman & Webb, Rockingham, and Jennings G. King, Laurinburg, for defendant-appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.
PARKER, Justice.
The defendant's assignments of error Nos. 2, 3, and 4, based on his exceptions Nos. 6 to 13, both inclusive, relate to the rulings of the court in excluding the testimony of Jerry Halton, and in permitting him to be asked only one question, when recalled in rebuttal. The defendant did not object to the rulings of the court at the time, but entered exceptions to these rulings after the trial when he prepared his statement of the case on appeal. The defendant vigorously contends in ten pages of his brief that these rulings of the court constitute reversible error; that "no exceptions were placed in the record at the time, but an exception was implied under the provisions of G.S. § 1-206(3)."
The general rule in criminal and civil cases is that exceptions to the evidence must be taken in apt time during the trial; if not, they are waived. State v. Ballard, 79 N.C. 627; Taylor v. Plummer, 105 N.C. 56, 11 S.E. 266; Lowe v. Elliott, 107 N.C. 718, 12 S.E. 383; Alley v. Howell, 141 N.C. 113, 53 S.E. 821. It is too late after the trial to make exceptions to the evidence. Alley v. Howell, supra; Hudson v. Seabord Air Line R. Co., 176 N.C. 488, page 496, 97 S.E. 388; Metropolitan Life Ins. Co. v. Boddie, 196 N.C. 666, 146 S.E. 598. These cases were decided prior to 1949. Ch. 150, S.L.1949, now codified as G.S. § 1-206(3), is clear and plain. This statute provides that no exception need be taken to any ruling upon an objection to the admission of evidence, but it does not do away with the necessity of making an objection to the ruling of the court. Cathey v. Shope, 238 N.C. 345, 78 S.E.2d 135; State v. Jenkins, 234 N.C. 112, 66 S.E.2d 819.
The defendant's assignments of error Nos. 2, 3 and 4 do not present any question for our decision, because the defendant has waived any rights he may have had by failing to object to the rulings of the court in apt time.
The defendant's assignment of error No. 12, based on his exception 21, is that the court erred in charging the jury as follows: "I charge you, Gentlemen, that if you find from the evidence or from the admissions of the defendant beyond a reasonable doubt that the defendant, Harry Howell, killed the deceased, Larry Graham, that he killed him intentionally, that he killed him in the heat of passion by reason of anger suddenly aroused on account of the assault which deceased was making upon the defendant, Harry Howell, and before a sufficient time had elapsed for the passion to subside and reason to resume its habitual control, then the defendant would be guilty of manslaughter, and if you so find it would be your duty to render a verdict of guilty of manslaughter against the defendant unless the defendant has satisfied you that he *238 killed the deceased, Larry Graham, in selfdefense."
Immediately after the shooting the defendant admitted several times that he intentionally shot Larry Graham with a pistol, but that he did it in self-defense. He made the same admission when a witness for himself during the trial. The court instructed the jury that it could return one of five verdicts: either guilty of murder in the first degree, or guilty of murder in the first degree with a recommendation that the punishment shall be imprisonment for life in the State's prison, or guilty of murder in the second degree, or guilty of manslaughter, or not guilty. The State in its brief does not contend that there was no evidence tending to reduce the alleged crime to manslaughter. From the evidence introduced during the trial it was proper for the court to charge the jury they could return one of five verdicts.
A few sentences before the part of the charge above quoted and excepted to, the court charged "I charge you further, gentlemen, if you find from the evidence beyond a reasonable doubt, the burden being upon the State, that the defendant, Harry Howell, intentionally killed the deceased, Larry Graham, with a deadly weapon, to wit, a pistol, which I charge you again is a deadly weapon, the law immedately raises two presumptions against the defendant: First, that the killing was unlawful, and secondly, that it was done with malice, and an unlawful killing with malice constitutes murder in the second degree. This presumption, however, may be rebutted." The court then stated the correct rule that under those circumstances the law casts upon the defendant the burden of showing to the satisfaction of the jury facts and circumstances sufficient to reduce the homicide to manslaughter or to excuse it.
However, in applying the law to the facts the court charged the jury that the defendant must show beyond a reasonable doubt facts and circumstances sufficient to reduce the crime to manslaughter, and in so charging the court committed prejudicial error.
Since the correction of an erroneous statement of the law inadvertently made in State v. Johnson, 48 N.C. 266 by State v. Ellick, 60 N.C. 450 and by State v. Willis, 63 N.C. 26, it has been unquestioned law 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. The law then casts upon the defendant the burden of proving to the satisfaction of the jurynot by the greater weight of the evidence nor beyond a reasonable doubt, but simply to the satisfaction of the jurythe legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or that will excuse it altogether upon the grounds of self-defense, accident, or misadventure. State v. Carland, 90 N.C. 668, 675; State v. Little, 178 N.C. 722, 100 S.E. 877; State v. Benson, 183 N.C. 795, 111 S.E. 869; State v. Gregory, 203 N.C. 528, 166 S.E. 387; State v. Terrell, 212 N.C. 145, 193 S.E. 161; State v. Burrage, 223 N.C. 129, 25 S.E.2d 393; State v. Powell, 238 N. C. 527, 78 S.E.2d 248.
Even if the court before and after in its charge stated the general principle of law correctly that the defendant must show to the satisfaction of the jury facts and circumstances sufficient to reduce the crime to manslaughter, yet that did not cure the error in the vital part of its charge when it applied the law to the facts, by requiring the defendant to show those facts beyond a reasonable doubt. This Court has uniformly held that where the court charges correctly in one part of the charge, and incorrectly in another part, it will cause a new trial, since the jury may have acted upon the incorrect part of the charge. State v. Morgan, 136 N.C. 628, 48 S.E. 670; State v. Isley, 221 N.C. 213, 19 S.E.2d 875; State v. Johnson, 227 N.C. 587, 42 S.E.2d 685; State v. McDay, 232 N.C. 388, 61 S.E.2d 86; State v. Stroupe, 238 N.C. 34, 76 S.E.2d 313.
The State contends that the charge is supported by State v. Bright, 237 N.C. 475, 75 S.E.2d 407. That case is distinguishable for that defendant's defense was based on the theory of an accidental shooting.
*239 Further exceptions to the charge raise serious questions, which it will not be necessary to discuss as this case goes back for a new trial.
The exception to the charge is well taken, and a new trial is ordered.
New trial.