#### STATE v. ALBERTUS SYLVESTER GRIER.

(Filed 25 November, 1936.)

Criminal Law 1/ e — The record is conclusive on appeal to the Supreme Court.

The record proper as contained in the statement of the case on appeal is conclusive, and where the record proper discloses that the trial court withdrew incompetent testimony from the jury and charged the jury fully and correctly upon the verdicts of murder in the first degree, murder in the second degree, manslaughter, and not guilty, • which the jury might return upon the evidence, defendant’s assignments of error based upon his contentions that the court did not withdraw the incompetent evidence from the consideration of the jury, and that the court instructed the jury that they could render one of two verdicts, guilty of murder in the first degree or not guilty, are not supported by the record and cannot be sustained.

Appeal by defendant from Hill, Special Judge, at April Special Term, 1936, of Mbcklbnbueg.

No error.

This is a criminal action in which the defendant Albertus Sylvester Grier was tried on an indictment in which he was charged with the murder of "Waddell Mackey in Mecklenburg County, on 18 April, 1936.

At the trial the evidence for the State tended to show that between 7 and 8 o’clock, on the night of 18 April, 1936, the defendant went into a cafe in the city of Charlotte, and there found Waddell Mackey and others with whom he had shortly before had a quarrel; that as he was leaving the cafe, the defendant requested Waddell Mackey to come out of the cafe to the sidewalk, saying that he wished to talk with him; that as Waddell Mackey came out of the cafe to the sidewalk, where the defendant was standing, he grabbed a shotgun from a bystander, and as *721Waddell Mackey started to walk down tbe sidewalk away from bim tbe defendant sbot Waddell Mackey and thereby inflicted a wound from wbieb be died witbin about 20 minutes. Botb witbin tbe cafe and on tbe sidewalk tbe defendant cursed Waddell Mackey and bis companions. After tbe defendant bad sbot Waddell Mackey, two police officers of tbe city of Charlotte, who bad been sitting in an automobile about 50 feet from tbe scene of tbe homicide, started toward tbe defendant, who thereupon raised bis gun and sbot at tbe officers, who returned tbe shots. Tbe defendant then fled. lie was subsequently arrested under a criminal warrant charging bim with murder.

Tbe evidence for tbe State tended to show further that shortly before tbe homicide tbe defendant met Waddell Mackey, who was walking on a street in tbe city of Charlotte with a girl, who bad been going with tbe defendant and other friends. Tbe defendant attempted by force to get tbe girl to leave Waddell Mackey and to go off with bim. In consequence of Waddell Mackey’s assistance to tbe girl, tbe defendant threw rocks at bim and bis friends, who in turn threw rocks at tbe defendant. After this occurrence, Waddell Mackey and bis friends, including tbe girl, went to a picture show, where they remained about 30 minutes. After leaving tbe picture show they went to tbe cafe, where tbe defendant found them shortly before tbe homicide.

■ Witnesses for tbe State testified that when tbe deceased came out of tbe cafe, in response to tbe request of tbe defendant, and while be was on tbe sidewalk, immediately before tbe defendant sbot bim, Waddell Mackey bad no knife or other weapon in bis bands, and that at tbe time be was sbot be was walking away from the defendant, who was cursing bim and demanding that be stop.

As a witness in bis own behalf, tbe defendant testified as follows:

“On Saturday night before Easter, I was going up a street in tbe city of Charlotte. I saw Bessie Foust, Waddell Mackey, and Sandy Pettis together. Sandy and I bad been together earlier that night. I bad seen Bessie Foust on McDowell Street, and bad talked with her alone. I saw her later at Smoky’s. Waddell Mackey came into Smoky’s bouse and stayed a good while. I left bim there. Later Waddell Mackey, Eobert Pettis, Joe Stanly, and Bessie Foust caught up with me on tbe street. I called Bessie Foust, and asked her to come with me. She did not come. Waddell Mackey said, 'She is not coming to you.’ He cursed me and then be and Eobert Pettis threw rocks at me. I threw a rock back at them, and then went on down tbe street. I next saw them at Moore’s Cafe. I did not know that they were in tbe cafe when I went in. After I saw them in tbe cafe, I left because I was afraid they would jump on me. As I left tbe cafe they followed me. Waddell Mackey bad a knife in bis bands while I was in tbe cafe. He cursed me and said be would *722cut my bead off. When be came out of tbe cafe to tbe sidewalk I got a gun from a man standing by whom I knew as Jim. When I sbot Waddell Mackey be bad a knife and was coming on me. I sbot only once, and then ran. As I ran I threw tbe gun away. Tbe officers sbot at me as I was running. I bad never bad any trouble before tbat nigbt witb Waddell Mackey. I knew Bessie Foust. I bad been going witb ber for some time. I never stayed witb ber, altbougb I admit I bad bad sexual relations witb ber. I was not jealous because sbe was going witb Waddell Mackey tbat nigbt. Wben I left tbe cafe tbat nigbt before tbe shooting, Waddell Mackey and bis friends followed me. I did not shoot but one time. I sbot Waddell Mackey because be was coming on me witb a knife. I did not shoot at tbe officers. I bad not threatened to shoot or kill anyone.”

There was evidence offered by tbe defendant tending to corroborate bis testimony. There was also evidence tending to show tbat tbe general character of tbe defendant is good.

In bis charge to tbe jury, tbe court instructed them tbat they should return a verdict of guilty of murder in tbe first degree, or guilty of murder in tbe second degree, or guilty of manslaughter, or not guilty, as they should find tbe facts to be from all tbe evidence submitted to them by tbe court.

Tbe jury returned a verdict of guilty of murder in tbe first degree.

From judgment tbat he suffer death by means of asphyxiation, as prescribed by statute, tbe defendant appealed to tbe Supreme Court, assigning errors in tbe trial.

Attorney-General Seawell and Assistant Attorney-General McMullan for the State.

A. A. Tarlton for defendant.

Connor, J.

A careful examination of the record proper in this Court, and of defendant’s assignments of error in bis appeal to this Court, fails to disclose any error in the trial of the action in the Superior Court or in the judgment from which the defendant has appealed to this Court.

The record of the trial as contained in the statement of the case on appeal does not support the contentions of the defendant that there was error in the failure of the trial court to withdraw testimony from the jury which was inadmissible as evidence because the testimony was hearsay, or that there was error in the charge for that the jury were instructed to return a verdict of guilty of murder in the first degree or not guilty. The record shows that the testimony of the witness, which bis examination showed was hearsay, was withdrawn by the court from the jury, and that the jury were instructed fully and correctly with *723respect to the verdict which they should return upon the facts as the jury should find them to be from all the evidence.

In the absence of any error in the record proper, or in the trial of the action, the judgment must be affirmed.

No error.