#### STATE v. WILL BROWN, JR.

(Filed 16 December, 1964.)

Appeal by defendant from Mallard, J., January-February 1964 Regular Criminal Session of Durham.

Criminal prosecution on bill of indictment charging defendant with the first degree murder of Joe Lyne Blumell. Upon call of the case for trial, the solicitor announced that the State would not ask for a verdict of guilty of murder in the first degree, but would ask for a verdict of guilty of murder in the second degree.

Evidence was offered by the State and by defendant.

The jury returned a verdict of “guilty of murder in the second degree.” Judgment imposing a prison sentence was pronounced.

Defendant excepted and appealed.

Attorney General Bruton and Deputy Attorney General McGalliard for the State.

Marshall T. Spears, Jr., for defendant appellant.

PER Cuelam.

There was plenary evidence that defendant intentionally shot Blumell on December 6, 1963, between 10:00 and 11:00 p.m., on Roxboro Street (near its intersection with Canal Street) in Durham, North Carolina, and that Blumell died at Duke Hospital on December 7, 1963, at 12:45 a.m., as the result of bullet wound (s) so inflicted.

*248Upon the evidence and instructions, whether defendant was guilty of murder in the second degree, or guilty of manslaughter, or not guilty, was submitted for jury determination. The evidence was amply sufficient to support the verdict. A full and careful consideration of the record discloses no error prejudicial to defendant. The court instructed the jury fully as to all legal principles and contentions favorable to defendant. Hence, the verdict and judgment will be upheld.

Defendant, an indigent, was represented in the superior court by two court-appointed counsel. After trial and conviction, defendant requested that said counsel be discharged and that the court appoint other counsel to prosecute his appeal. Under these circumstances, the court permitted said court-appointed trial counsel to withdraw and appointed Marshall T. Spears, Jr., Esquire, as counsel for defendant to perfect and prosecute his appeal. Mr. Spears has served only as appellate counsel.

No error.