#### STATE v. LEE HELLER.

(Filed 2 November, 1949.)

Homicide § 37 c—

In a prosecution for uxorcide where defendant’s own testimony is to the effect that he did not intend to shoot his wife but intended to kill the person he thought to be her paramour whom he believed to be in the house, an instruction that if defendant feloniously and with premeditation and deliberation intended to kill another person and killed his wife instead, he would be guilty of murder in the first degree, cannot be held for prejudicial error.

Appeal by defendant from Rousseau, J., February Criminal Term, 1949, of Catawba.

Criminal prosecution on indictment charging tbe defendant with tbe murder of bis wife, Nettie Simmons Heller.

Tbe defendant and bis wife were estranged, living separate and apart apparently on account of tbe wife’s children, the defendant’s step-children. It also appears that tbe defendant thought bis wife was unfaithful to him and was keeping company with one Eoy Simms.

On Sunday afternoon, 10 October, 1948, tbe defendant went to bis wife’s home and engaged her in conversation on tbe porch. She went back into tbe kitchen. Tbe defendant then went to tbe back door, drew bis pistol and shot bis wife in tbe breast. She died almost instantly.

When tbe defendant was brought to tbe jail, be said to tbe jailer, “I bate I did not get him also.” Tbe defendant says tbe jailer misunderstood him; that what be said was be did not intend to shoot bis wife but someone else, meaning Eoy Simms. He thought Eoy Simms was in tbe bouse.

At tbe close of all tbe evidence, tbe defendant tendered a plea of guilty of murder in tbe second degree, it appearing and being admitted that be killed bis wife with a deadly weapon. This was rejected by tbe solicitor.

Verdict: Guilty as charged in tbe bill of indictment.

Judgment: Death by asphyxiation.

Tbe defendant appeals, assigning error.

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

J. W. Hollingsworth and Russell W. Whitener for defendant.

Stacy, C. J.

The defendant has been convicted of a capital felony, murder in the first degree, with no recommendation from the jury, and sentenced to die as the law commands in such case. His only exception and assignment of error is to the court’s instruction to the jury that if the *68defendant feloniously and with, premeditation and deliberation intended to kill another person and killed his wife instead he would be guilty of murder in the first degree.

It is conceded that this instruction would be correct under appropriate circumstances. S. v. Burney, 215 N.C. 598, 3 S.E. 2d 24; S. v. Sheffield, 206 N.C. 374, 174 S.E. 105; S. v. Dalton, 178 N.C. 779, 101 S.E. 548; S. v. Fulkerson, 61 N.C. 233. See, also, S. v. Lilliston, 141 N.C. 857, 54 S.E. 427. Here, however, the defendant says the facts do not call for its application, and hence it was misleading. S. v. Anderson, 222 N.C. 148, 22 S.E. 2d 271; S. v. Bryson, 200 N.C. 50, 156 S.E. 143; S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Waldroop, 193 N.C. 12, 135 S.E. 165.

While the principle might have been applied with more directness to the facts in hand, it is manifest that no material prejudice has -resulted to the defendant from the instruction as given. It finds support in the defendant’s own evidence. Hence, as no reversible error has been made manifest, the verdict and judgment will be upheld.

No error.