#### STATE v. THADDEUS HILL.

(Filed 21 March, 1945.)

1. Criminal Haw §§ 42, 48c: Evidence § 42b—

In the trial oí defendant on an indictment for assault with a deadly weapon, inflicting serious injury not resulting in death, with intent to kill, the admission of evidence that the prosecutrix, who was present and testified at the trial, said just after she was shot by defendant, “I am going to die,” is harmless and it is immaterial whether or not her statement was hearsay or part of the res gestee, there being no controversy about her serious condition or the fact that she was shot by defendant.

2. Criminal Haw § 52b—

A motion for judgment as of nonsuit, in a criminal case under G. S., 15-173, must be made at the close of the State’s evidence and, if denied, renewed at the close of all the evidence, otherwise the benefit of the exception to the court’s refusal to grant the motion is lost.

3. Appeal and Error § 29—

Exceptions, not brought forward in the brief and argued as required by the Buies of this Court, are treated as abandoned. Buie 28.

*754. Jury § 1—

The competency of jurors is a question to be passed upon by tlie trial judge.

5. Same—

Upon a motion to set aside a verdict in a criminal case, on account of the presence of two newspaper reporters in the jury room during the jury’s deliberation, where the court, after a full investigation, found that the reporters went into the jury room by mistake but said nothing to any member of the jury and that no member of the jury spoke to the reporters and that the deliberation and verdict of the jury were in no way influenced by the presence of the reporters, there is no error in the court’s denial of the motion.

Appeal by defendant from Bone, J., at November Term, 1944, of "WayNE.

Criminal prosecution tried upon indictment charging the defendant with an assault upon one Anna Bell Massengill with a deadly weapon, to wit', a pistol, inflicting serious injury, not resulting in death, with the intent to hill and murder the said Anna Bell Massengill.

The defendant is a married man and has a wife and two children living in Fremont, N. C. In 1941 he obtained a job in Goldsboro. After that time he kept a room in Goldsboro, going back and forth to his home in Fremont, from time to time. The prosecuting witness is a widow. She and the defendant had been associating with each other for several years. They made many trips together, he often called on her at her home or apartment and she often visited him in his room, and frequently spent the night with him. On 19 September, 1944, about 7 :30 o’clock p.m., they met at a local drug store and the prosecuting witness testified the defendant was mad and threatened her life, that he insisted she go with him to his room in a local hotel. There, according to the evidence, both took several drinks of liquor, and around 12 :00 o’clock midnight, when the prosecuting witness started to leave, the defendant shot her with a pistol through the abdomen and through the neck. The defendant denies any knowledge of the shooting, claiming that his mind went blank and that he was too drunk to have any knowledge of what he was doing.

Verdict: “Guilty of assault with deadly weapon, with intent to kill, inflicting serious bodily injury, not resulting in death.” Judgment: Imprisonment in the State’s Prison for a term of not less than seven nor more than ten years.

Defendant appeals, assigning error.

*76 Attorney-General McMullan and Assistant Attorneys-General Rhodes and Moody for the State.

N. W. Outlaw for defendant.

Denny, J.

Tbe first assignment of error is based upon an exception to tbe admission of tbe testimony of Dave Shipp, a police officer of tbe city of Goldsboro. Tbis officer testified that wben be arrived at tbe hotel be found Mrs. Massengill, Tbaddeus Hill and Officer Gurley. “Tbey were taking Mrs. Massengill. up to take ber to tbe hospital. When I got there I thought Mr. Hill was shot and I rushed to him and beard Mrs. Massengill say, ‘I am going to die.’ ” Tbe defendant contends tbe statement of Mrs. Massengill was incompetent as evidence against him and that its admission was prejudicial error. We do not so bold. It is immaterial whether or not tbe statement made by Mrs. Massengill was a part of tbe res gestae. She was in a serious condition at the time, hut she did not die and was present and testified at the trial below, and so did tbe defendant. There is no controversy as to tbe extent of ber injuries or doubt as to bow or by whom tbey were inflicted. Tbe defendant told Mr. Gurley, one of tbe investigating officers, that be shot Mrs. Massengill. We consider tbe evidence harmless, even if conceded to be hearsay, as contended by tbe defendant. Tbe exception cannot be sustained. S. v. Smith, 221 N. C., 278, 20 S. E. (2d), 313; S. v. Wells, 221 N. C., 144, 19 S. E. (2d), 243; S. v. Wray, 217 N. C., 167, 7 S. E. (2d), 468; S. v. Beal, 199 N. C., 278, 154 S. E., 604.

Tbe defendant, pursuant to G. S., 15-173, moved for judgment as of nonsuit at tbe close of all tbe evidence, tbe motion was denied and tbis forms tbe basis of tbe fourth assignment of error. Tbis statute serves tbe same purpose in a criminal prosecution, as does G. S., 1-183, in a civil action. Tbe time wben tbe motion for judgment as of nonsuit should be made, and if denied renewed, is tbe same under both statutes. Tbe exception here cannot be sustained for two reasons: First, no motion to dismiss under tbe statute was made at tbe close of tbe State’s evidence, but made for tbe first time at tbe close of all tbe evidence. Avent v. Millard, ante, 40; S. v. Ormond, 211 N. C., 437, 191 S. E., 22; S. v. Norris, 206 N. C., 191, 173 S. E., 14; S. v. Sigmon, 190 N. C., 687, 130 S. E., 854. Secondly, tbe exception is not brought forward in tbe brief and argued, as required by tbe Rules of tbis Court, and is, therefore, treated as abandoned. Rule 28, Rules of Practice in tbe Supreme Court, 221 N. C., 562.

Tbe 19th assignment of error is based upon tbe refusal of bis Honor to set aside tbe verdict on tbe ground that two reporters of tbe News Argus were in tbe jury room several minutes while tbe jury was deliberating on tbis case. Wben tbe motion was made to set aside tbe verdict *77on tbe above ground, bis Honor conducted a tborougb investigation, and called as witnesses tbe two reporters and eacb member of tbe jury. Tbe reporters testified tbey did not know tbe jury was deliberating, but tbougbt “tbe jury was just coming back in.” Tbe reporters were discussing tbeir notes and beard nothing that was said by any member of tbe jury. Tbey were just inside tbe door of tbe jury room and tbe members of tbe jury were over near tbe window. Eacb member of tbe jury testified be saw tbe young ladies enter tbe jury room, but did not bear anything tbey said and that no member of tbe jury spoke to them. At tbe close of tbe investigation, tbe court said: “I don’t want to embarrass you ladies any more than tbe situation creates embarrassment. It is very unfortunate that you were thoughtless enough to go in tbe jury room and it is causing us to have to stop and make this investigation and threatens a mistrial of tbe case; but after making this tborougb investigation I am satisfied no barm was done and I am satisfied that neither of you ladies intended to do any barm or affect tbe verdict; I am absolutely satisfied about that but I hope it will make you and others a little more careful next time when entering tbe courtroom not to go through tbe jury room.” Whereupon tbe court found as a fact: “That during tbe deliberation of tbe jury Mary Elizabeth Hart and Mary Medley, through mistake, went into tbe jury room but that tbey did not say anything to any member of tbe jury about this ease or about any other matter and that no member of tbe jury said anything to either of them. That neither tbe deliberation of tbe jury nor tbe jury’s verdict were in any manner influenced by tbeir entrance into tbe jury room.” Thereupon tbe court denied tbe defendant’s motion to set aside tbe verdict and for a new trial.

Tbe competency of jurors is a question to be passed upon by tbe trial judge, and tbe ruling herein on tbe evidence and facts found therefrom is not reviewable. Tbe exception cannot be sustained. S. v. DeGraffenreid, 224 N. C., 517, 31 S. E. (2d), 523, and tbe cases there cited.

Tbe remaining assignments of error are without merit or must be treated as abandoned, for failure to bring them forward in tbe brief, as required by tbe Rule cited herein. Nevertheless, a careful review of all tbe exceptions set forth in tbe record leads to tbe conclusion that in tbe trial below, there was

No error.