#### STATE OF NORTH CAROLINA v. JAMES SPENCER

No. 732SC385

(Filed 27 June 1973)

ON certiorari to review the order of Rouse, Judge, 26 April 1971 Session of Superior Court held in Washington County.

Defendant was charged in a bill of indictment with first degree murder of one John Willie Wilkins on 2 April 1971. Defendant entered a plea of not guilty.

At trial the State presented evidence which tended to show the following. On 2 April 1971 at approximately 9:00 p.m., *579defendant and John Willie Wilkins, the deceased, were in Warren Everett’s “night spot” on Highway 32 near Plymouth, North Carolina. Warren Everett, the proprietor, was working behind the drink counter on the night in question and heard a shot. Everett turned around and saw defendant shooting a pistol at John Willie Wilkins. He heard approximately four shots and then the deceased turned and ran out the back door of the “night spot.” Two other eyewitnesses also saw defendant shooting at the deceased and then saw the deceased run out the back door. Another witness, who was outside the building at the time of the shooting, heard shots from inside the building and then saw deceased rush out the back door. Deceased died from internal hemorrhaging caused by bullet wounds.

Defendant presented evidence which tended to show the following: that immediately prior to the shooting defendant placed a quarter in the juke box at Everett’s “night spot”; that at this time the deceased tried to “walk up” to defendant; that deceased said something to defendant; that defendant walked away from deceased and said “I don’t want to hear it”; that deceased hollered “Don’t walk away from me when I am talking to you”; that deceased followed defendant as he was walking toward the door; that deceased made some motion toward his pocket, and defendant pulled out a pistol and fired at the floor; that deceased and defendant began struggling, and during the struggle two or three shots went off; that after the third shot the deceased fell against the counter and ran out the back door; that automatic rifle shots were heard outside the building as well as the shots heard inside the building; that a tire on one of the cars in the parking lot was punctured by a bullet and that two bullet holes were found under the front door of the same car.

A jury returned a verdict of guilty of second degree murder. Defendant appealed.

Attorney General Morgan, by Assistant Attorney General Briley, for the State.

Forrest V. Dunstan for defendant.

BROCK, Judge.

Defendant was represented by counsel during his trial and on this appellate review. The bill of indictment is proper in form and sufficient to charge the felony of murder. The court *580was properly organized and had jurisdiction of the subject matter and the person of defendant. Trial was by jury which found defendant guilty of second degree murder. The evidence was sufficient to overcome defendant’s motion for nonsuit, and to require submission of the case to the jury. The verdict' was proper in form and the prison sentence imposed is within statutory limits.

We have reviewed the record and in our opinion defendant had a fair trial, free from prejudicial error.

No error.

Judges Britt and Hedrick concur.