#### STATE v. GEORGE HORNE.

(Filed 21 November, 1945.)

1. Homicide §§ 17, 27a — .

In a criminal prosecution for murder, on defendant’s exception to tbe overruling of bis objection to State’s witness being- permitted to tell wbat be saw happen on the occasion of the homicide, “unless he fixes the date,” and to the court’s remark in so ruling, “he hasn’t got to fix any specific date,” since time is not of the essence of the offense and both the indictment and testimony of other witnesses fixed the date on which defendant struck the blow causing deceased’s death, the exception is without merit, and the remark of the judge may not be regarded as harmful.

2. Homicide §§ 27d, 27e—

Where the court charged the jury, in a prosecution for murder based on evidence that defendant struck deceased causing death: — that, if the State satisfies you by the evidence and you find beyond a reasonable doubt that defendant struck deceased on his head with a blackjack and that the blow or blows thus inflicted proximately caused his death and the fatal blow was struck with malice, defendant would be guilty of murder in the second degree; and that, if you so find that defendant- so struck deceased and such blow or blows proximately caused his death, and that defendant did not strike with malice but did so willfully and unlawfully, he would be guilty of manslaughter; and where the court further charged that if the jury did not find, beyond a reasonable doubt, that defendant so struck the deceased, or if they found that defendant did so strike deceased, but were not satisfied beyond a reasonable doubt that the blow proximately caused his death, then, in either case, they should acquit the defendant — there is no error, and proximate cause was correctly defined.

3. Homicide § 27a—

On objections to the court’s charge, the State asking for a verdict of either murder in the second degree or manslaughter, as the evidence may warrant, where the court charged fully as to the law applicable to murder in the second degree and as to manslaughter, and then stated at length the *604contentions of the State and the contentions of the accused, we find no error, considering the charge contextually, as it is not perceived wherein prejudice or unfairness properly could be attributed to the language of the judge.

Appeal by defendant from Phillips, J., at April Term, 1945, of GastoN. No error.

Indictment for murder. The solicitor announced that the State would only ask for verdict of guilty of murder in second degree or manslaughter as the evidence might warrant. The State offered evidence tending to show that on 9 March, 1945, deceased was in defendant’s cafe, and that in consequence of some apparently inoffensive words which passed between them the defendant became enraged, ordered deceased out of the cafe, and struck him on the head twice with a blackjack, and kicked him as he staggered out and fell in the yard. Deceased was unarmed and had made no hostile demonstration toward defendant or anyone else. Deceased died shortly thereafter, and post mortem examination revealed that death was due to fractured skull and ruptured artery inside the skull. Defendant denied that he had struck deceased with a blackjack, or that he had ever seen him. There was verdict of guilty of murder in second degree, and from judgment imposing sentence defendant appealed.

Attorney-General McMullwn and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.

0. A. Warren and Ernest R. Warrant for defendant.

Devin, J.

The defendant in his appeal from the judgment below brings forward three assignments of era’or which will be considered in order.

1. The defendant excepted to the overruling of his objection to a State’s witness being permitted to tell what he saw happen on the occasion of the alleged homicide, “unless he fixes the date,” and to the court’s remark in so ruling, “he hasn’t got to fix any specific date.” Since time was not of the essence of the offense charged, and both the indictment and the testimony of other witnesses fixed 9 March, 1945, as the only date on which the deceased was struck by the defendant, the exception is without merit. S. v. Moore, 222 N. C., 356, 23 S. E. (2d), 31; S. v. Baxley, 223 N. C., 210, 25 S. E. (2d), 621. The remark of the judge in response to defendant’s objection may not be regarded as harmful. S. v. Cash, 219 N. C., 818, 15 S. E. (2d), 277.

2. The defendant noted exception to the use of the following language by the court in charging the jury: “If you fail to find from the evidence and beyond a reasonable doubt that the defendant struck the *605deceased at all, tben be would not be guilty of any offense.” Tbe words quoted immediately followed instructions to tbe jury that if tbe State bad satisfied them from the evidence beyond a reasonable doubt that tbe defendant struck tbe deceased on bis bead with a blackjack and that tbe blow or blows thus inflicted proximately caused bis death, and tbe fatal blow was struck with malice, tbe defendant would be guilty of murder in tbe second degree; and that if tbe jury found beyond a reasonable doubt that defendant struck tbe deceased on bis bead with a blackjack, and such blow or blows proximately caused bis death, but that defendant did not strike with malice but did so willfully and unlawfully, defendant would be guilty of manslaughter. Tben followed tbe instruction in effect that if tbe jury did not find beyond a reasonable doubt that tbe defendant struck tbe deceased, be would not be guilty of any offense. Tbe court was also careful to instruct tbe jury in substance if they found defendant did strike tbe deceased with a blackjack, but were not satisfied beyond a reasonable doubt that tbe blow proximately caused bis death, they should acquit tbe defendant. Proximate cause was correctly defined.

Tbe charge of tbe court in tbe matter to which exception was noted seems to have been free from error, and no harmful result to tbe defendant can be predicated thereon. Tbe language here is different from that referred to in S. v. Floyd, 220 N. C., 530, 17 S. E. (2d), 658, and S. v. Patterson, 212 N. C., 659, 194 S. E., 283.

3. Tbe defendant complained of tbe following statement by tbe judge in bis charge to tbe jury: “Now, gentlemen of tbe jury, this is an important case for tbe State and an important case for tbe defendant. A man is dead and tbe State is saying and insisting that tbe defendant killed him unlawfully, tbe State asking at your hands a verdict of murder in tbe second degree and insisting that you should so find in this case.” Tbe record shows that immediately following tbe quoted words, tbe court stated that tbe State contended if tbe jury failed to find tbe defendant guilty of murder in tbe second degree, their verdict should be guilty of manslaughter; and the defendant’s contention in tbe same connection was given as follows: “Tbe defendant, on tbe other band, insists and contends that you should fail to find from tbe evidence and beyond a reasonable doubt that be is guilty of murder in tbe second degree, and that likewise you should fail to find him guilty of manslaughter, but that you should fail to find from tbe evidence and beyond a reasonable doubt that be is guilty of either offense, murder in tbe second degree or manslaughter, and that your verdict should be that of not guilty.”

These instructions were given at tbe close of tbe court’s charge and after be bad previously charged fully as to tbe law applicable to murder in tbe second degree and manslaughter and bad stated at length tbe *606contentions of tbe State and the defendant. Considering the charge contextually, we are unable to perceive wherein prejudice or unfairness properly could be attributed to the language used. S. v. Hairston, 222 N. C., 455, 23 S. E. (2d), 885; S. v. Shepherd, 220 N. C., 377, 17 S. E. (2d), 469.

Assignments of error relating to the denial of defendant’s motion for judgment of nonsuit have been abandoned. The only other assignments of error are formal.

After a careful examination of the record as to the rulings complained of, we conclude that in the trial below there was

No error.