#### STATE v. ARTHUR JOHNSON.

(Filed 14 December, 1912.)

1. Murder — Evidence—Instructions—Less-Offense—Harmless Error.

Upon evidence ample for conviction of murder in tbe first degree, for which, the prisoner was convicted, a charge of the court, that if it satisfied the jury beyond a reasonable doubt that the prisoner slew the deceased with a deadly weapon they should at least convict him of murder in the second degree, is harmless, and an exception thereto immaterial.

2. Instructions — Objections and Exceptions — Specifications—Appeal and Error.

An exception to a charge of the court, that it was illogical and confusing and may have misled the jury to the prejudice of the objecting party, will not be considered on appeal when the particulars therein are not pointed out.

3. Court’s Discretion — Motions — 'Verdict Set Aside — Appeal and Error. »

An exception to the refusal of the court to set aside a verdict as being contrary to the weight of the evidence will not be considered on appeal, as that matter is within the discretion of the trial judge.

Appeal by defendant from Carter, J., at September Term, 1912, of Pender.

Indictment for murder. The prisoner was convicted of murder in the first degree, and from sentence of death appeals.

*265 Attorney-General BicJcett ancl Assistant Attorney-General Calvert for the State.

No counsel for the prisoner.

BeowN, J.

Tbe prisoner offered no evidence, and that introduced by tbe State tends very strongly to prove tbat tbe prisoner deliberately murdered bis wife, Rose Johnson.

There is evidence tending to prove tbat prisoner was walking with bis wife some 50 yards behind their children. One witness testifies: “I saw Arthur with bis band behind him tbat jgway, and I beard tbe report of a pistol. She jumped behind him and clung to bis back. He got loose and then be shot her again. She ran to tbe old shanty. He ran and shot her there. Then she goes to tbe place where she was first hurt, and be shot her again there. She fell, and be stood there and looked at her and helped her up. She fell tbe second time. He looked at her and threw bis bead up and walked on off. He overtook bis children, and then be began to run.”

Another witness testifies: “I saw tbe shooting; I was walking along tbe street near tbe railroad. I beard squalling. I beard a woman squall', and about tbat time I saw tbe smoke of a pistol, before I beard tbe report of it. About tbat time, tbe same instant tbat I beard tbe report, she bad clinched around bis neck to tbe back of him; be threw her from tbe back to tbe front; she jumped to run; be ran behind her and shot her twice; then she wheeled in a circle; she stood up for an instant; be went to her and knocked her down, and after she fell be stood over her and looked at her and caught her by her dress.”

There is only one exception to evidence, and there is no merit in tbat.

Exceptions 2 and 3 to tbe charge are practically tbe same, viz.:

> “Tbe court instructs you tbat if tbe evidence satisfies you beyond a reasonable doubt tbat tbe prisoner slew tbe deceased with a deadly weapon, you would at least convict tbe defendant of'murder in tbe second degree.”

There is not a scintilla of evidence upon which a verdict of manslaughter could have been based, and no such contention was made on tbe trial.

*266As the prisoner was convicted of the greater offense of murder in the first degree, this exception is not material. Nevertheless, the charge is correct. S. v. Worley, 141 N. C., 764; S. v. Cox, 153 N. C., 638; S. v. Simonds, 154 N. C., 197.

Exception 4 is taken because his Honor told the jury that the prisoner had the right to rely upon the State’s evidence to make out his defense. This part of the charge is unexceptionable so far as the defendant is concerned. It gave him the benefit of any of the evidence introduced by the State. He had offered none himself.

Exception 5: The defendant assigns as error that the court erred in the charge as delivered, in that the same was not a clear and concise statement of the law relative to the case, but that the same was illogical and confusing and may have misled the jury to the prejudice of the defendant. The appellant should have pointed out the particulars in which he thinks the charge was illogical and confusing. S. v. Webster, 121 N. C., 586; Andrews v. Telegraph Co., 119 N. C., 403. We have examined the charge, however, and do not find that it is amenable to such criticism.

Exception 6: The defendant assigns as error that the court erred in refusing to set aside the verdict of the jury for that the same was contrary to the weight of the evidence. This is a matter in the discretion of the trial court, and not reviewable. S. v. Hancock, 151 N. C., 699; S. v. Rose, 129 N. C., 575. An examination of the record, however, discloses an unusually strong case as made out by the State.

This is a case where life is at stake. We have not been aided by argument or brief for the prisoner. We have examined the record with that care which the gravity of the issue demands, and we find

No error.