
    STATE v. THURMAN BLANKS.
    (Filed 25 May, 1949.)
    1. Criminal I/aw §§ 53f, 531c—
    Objection tbat in stating tbe contentions, tbe court unduly emphasized tbe testimony of certain of tbe State’s witnesses held untenable, it appearing tbat the court stated tbe testimony of these and other witnesses fully and fairly.
    
      2. Criminal Law § 78e (2) —
    Exception to an immaterial misstatement of the evidence will not be considered when the matter was not .called to the trial court’s attention at the time.
    3. Homicide § 27h—
    Defendant pleaded not guilty and did not testify personally or make any admission. Defendant’s counsel did not admit that the gun with which deceased was shot was in the hands of defendant, but did offer to plead guilty of murder in the second degree. The court charged that defendant contended he was not guilty of any of the degrees of homicide, seriatim, and that he contended that the jury should have a reasonable doubt of his guilt and acquit him of any offense. Held: The charge was not prejudicial to defendant.
    4. Homicide § 25—
    Evidence tending to show that defendant had animosity toward deceased, that he approached him armed with a gun and ordered him to “Stick em up” several times, and shot his unarmed victim when he had raised his hands as high as his head, is held sufficient to sustain conviction of murder in the first degree, and objection that there was no sufficient evidence of premeditation and deliberation is untenable.
    5. Criminal Daw § 53d: Homicide § 27a—
    • The court merely recited testimony that after the offense, defendant went to the city and surrendered to the officers. The failure of the court to charge upon the law of flight is not error, since in no place in the charge did the court instruct the jury that it should consider flight as evidence of guilt, much less that it might be considered as evidence of guilt of first degree murder.
    6. Criminal Daw § 34d: Homicide § 19—
    Flight of a defendant may be considered with other circumstances as an implied admission of guilt, but it is not evidence of premeditation or deliberation in a homicide prosecution.
    Appeal by defendant from Burney, J., January Term, 1949, of Bladen. No error.
    
      Aitorney-General McMullan and Assistant Attorney-General Bruton for the State.
    
    
      Robert R. Bond, David Sinclair, and Robert J. Hester for defendant, appellant.
    
   Devin, J.

Tbe State’s evidence tended to show that the homicide occurred on the afternoon of Sunday, 1 November, 1948, at the home of Owen Graham, in the presence of a number of witnesses who had gathered there. Graham and another were seated in an automobile in front of the house, and the deceased had walked up near by when the defendant came from behind the bouse with a shotgun. He approached within 10 or 11 feet of the deceased and said to him, “Stick em up.” This he repeated three times. The deceased raised his hands as high as his head, and the defendant then shot him, killing him instantly. After shooting the deceased the defendant said, “You took a gun off my brother one time six months ago. It’s too late now, I done killed him,” or “I have done done it.” The deceased had no weapon or anything in his hand. It was in evidence that defendant had told a witness that deceased had accused him and Graham of making liquor. After shooting deceased, the defendant left and went to Wilmington, where he surrendered to the officers.

The defendant did not testify and offered no evidence. At the close of the State’s evidence the defendant through his counsel moved for judgment of nonsuit as to murder in the first degree, offering to tender plea of guilty of murder in the second degree. The motion was denied.

The defendant assigns error in the court’s charge to the jury in the several respects pointed out by his counsel in their brief and stressed in the oral argument.

The first two exceptions brought forward are based on the ground that the court in reciting the evidence stated the State’s contentions as to the testimony of certain witnesses more in detail than was accorded defendant’s contentions. However, from an examination of the charge, we think the trial judge stated the testimony of these and other witnesses fully and fairly, and we perceive no hurtful effect to the defendant on that score. Defendant also noted exception to the fact that in one instance the court in stating the State’s contentions quoted the remark made by the defendant after the shooting as “You took my brother’s gun six months ago and I have gotten you now,” instead of stating the last clause in the language of the witness as “I done killed him.” We do not find here any material misstatement of the evidence, nor was this called to the court’s attention at the time. S. v. Hooks, 228 N.C. 689, 47 S.E. 2d 234; S. v. Edwards, 228 N.C. 153, 44 S.E. 2d 725.

The defendant also noted exception for that the; court in stating defendant’s contentions said the defendant contended he was not guilty of any offense, and that the jury ought not to believe him guilty of murder in first degree or in second degree, or manslaughter; that the jury should have a reasonable doubt as to his guilt and give him the benefit of such doubt and acquit him. The defendant suggests that as he had offered to plead guilty of murder in the second degree and his counsel had so stated, this had the effect of prejudicing him in the eyes of the jury. But the defendant had pleaded not guilty. He had not testified or personally made any admission. His counsel admitted the deceased died as result of gunshot wound but declined to admit the gun was in the hands of defendant. The burden was on the State throughout to satisfy the jury beyond a reasonable doubt of bis guilt. Tbe credibility of tbe witnesses was for tbe jury. There was no error, of wbicb tbe defendant can complain, in instructing tbe jury as to tbe different degrees of homicide, or in charging them that they should not return verdict of guilty of murder in tbe first degree if they entertained a reasonable doubt about it, or find tbe defendant guilty of any lesser offense unless so satisfied from tbe evidence beyond a reasonable doubt, and that unless they so found they should acquit him. S. v. Maxwell, 215 N.C. 32, 1 S.E. 2d 125; S. v. Ellison, 226 N.C. 628, 39 S.E. 2d 842. Nor was there error in giving tbe defendant tbe benefit of these principles of law in stating contentions based thereon.

It was argued that tbe State’s evidence was insufficient to make out a case of first degree murder for that it showed tbe homicide was committed upon a sudden impulse, prompted by tbe circumstance of tbe moment, rather than as tbe result of premeditation and deliberation, and that tbe court should have so instructed tbe jury. But we think that was a matter for tbe jury, and that there was evidence to support tbe charge of murder in tbe first degree. S. v. Walker, 173 N.C. 780, 92 S.E. 327; S. v. Benson, 183 N.C. 795, 111 S.E. 869; S. v. Buffkin, 209 N.C. 117, 183 S.E. 543; S. v. Wise, 225 N.C. 746, 36 S.E. 2d 230.

Tbe defendant excepted to tbe court’s action in reciting tbe testimony of tbe witnesses that after tbe shooting tbe defendant left and went to Wilmington without explaining to tbe jury tbe law relating to flight. An examination of tbe judge’s charge shows that in quoting this testimony be did not refer to it specifically as evidence of guilt, or include it in bis statement of tbe State’s contentious as constituting evidence of guilt. Tbe court merely stated tbe testimony of witness that “be went to Wilmington and surrendered to tbe officers.” Nor does it appear that this testimony was permitted to be considered by tbe jury as evidence of first degree murder. It is well settled that flight of a defendant is not evidence of premeditation or deliberation, but may be considered with other circumstances on tbe question of guilt; or as a circumstance from wbicb an inference of conscious guilt might be drawn, unless explained. S. v. Foster, 130 N.C. 666, 41 S.E. 284; S. v. Malonee, 154 N.C. 200, 69 S.E. 786; S. v. Payne, 213 N.C. 719, 197 S.E. 573; S. v. Peterson, 228 N.C. 736, 46 S.E. 2d 852.

After a careful consideration of tbe exceptions brought forward in defendant’s appeal as well as tbe entire record, including tbe charge of tbe trial judge, we reach the conclusion that there was no error in tbe trial of wbicb tbe defendant can justly complain, and that tbe judgment below must be affirmed.

No error.  