majority">Denny, J.

During the concluding argument on behalf of the State, the solicitor stated to the jury that the defendant went to the home of J. E. Sigmon about 2 :00 p.m. on the day of the homicide, and got his shotgun and went from there to the home of the deceased and asked Bobby Lee Poovey where his mother was, and, at the time he made the inquiry, he had the shotgun with him. Whereupon, defendant’s counsel objected to this argument and requested the court to direct the jury that this argument was not substantiated by the record, which would show that at the time defendant went to the home of the deceased and asked Bobby Lee Poovey where his mother was, the defendant did not have a shotgun. The court overruled defendant’s objection, denied his request, and instructed the jury “that they should rely upon their own recollection of the testimony and not the solicitor’s recollection or counsel for defendant’s recollection,” to all of which the defendant in apt time excepted. Thereafter, his Honor, in his charge to the jury, in reviewing the testimony, gave as a contention of the State “That after the defendant left there that he went back towards his own home and later went over to Mr. J. E. Sigmon’s where he had been keeping his gun and the shells, and there talked to Mr. Sigmon and got his gun; that that was about 2 :00 p.m. Then the State contends that the defendant from there went to Mr. Russell Sigmon’s at about 2 :30 and asked Bobby Lee where his mother was or if she was working. Then the State contends that he had planned this killing; that he went and got the shotgun and ammunition from Mr. Sigmon’s and asked Bobby Lee where his mother was, and when he found she was not there, the State contends he went some place where the toilet was; . . . and waited there in the afternoon until Mrs. Sigmon went there to the toilet about 6 :00 o’clock.”

The defendant likewise excepted to the foregoing part of the charge. These exceptions must be sustained.

The argument of the solicitor and the contention of the State given in.the charge to the jury, to the effect that the defendant was armed with a shotgun when he went to the home of Russell Sigmon about 2 :00 p.m., *313on 16 August, 1944, and inquired of Bobby Lee Poovey where his mother was, are not supported by the evidence, but, on the contrary, are in direct conflict with the State’s undisputed evidence on this point.

The argument of the solicitor and the contentions of the State, to which the defendant objected, had a direct bearing on the question of premeditation and deliberation, and were prejudicial.

The State contends that since counsel for the defendant failed to call this matter to the attention of the court at the time, he has waived his right to object. Ordinarily this is true. S. v. Britt, post, 364. But we think the facts here constitute an exception to the general rule and come within the principle laid down in S. v. Love, 187 N. C., 32, 121 S. E., 20, in which case the holding is succinctly stated in the syllabus thereof, as follows: “The rule that requires an objection at the time to an erroneous statement in the charge of the contention of the parties, does not apply on the trial of first degree murder, when such statement includes the assumption of sworn evidence against the prisoner upon the trial, that had been excluded, tending to show previous malice of the prisoner, vitally necessary upon the question of his premeditation.” Moreover, the defendant had already challenged the correctness of the evidence on which the contentions were based and requested the court to instruct the jury as to what the evidence did show. This should have been done. Curlee v. Scales, 223 N. C., 788, 28 S. E. (2d), 576. The court, however, overruled the objection and denied the request for instructions. It is equally as harmful to base an argument or a contention on a statement of facts unsupported by the evidence as it is to base them on incompetent evidence which has been withdrawn from the jury, and when such argument or contention is prejudicial, an exception thereto will be sustained. Howell v. Harris, 220 N. C., 198, 16 S. E. (2d), 829; S. v. Wyont, 218 N. C., 505, 11 S. E. (2d), 473; Smith v. Hosiery Mill, 212 N. C., 661, 194 S. E., 83. In the latter case, in considering contentions of the plaintiff based on excluded evidence, Stacy, O. J., speaking for the Court, said : “The testimony undoubtedly found lodgement in the court’s mind, and to have called the matter to his attention, as a correctible inadvertence, would only have served to emphasize the error. Bank v. McArthur, 168 N. C., 48, 84 S. E., 39; Medlin v. Board of Education, 167 N. C., 239, 83 S. E., 483; Speed v. Perry, ibid., 122, 83 S. E., 176; S. v. Whaley, 191 N. C., 387, 132 S. E., 6; S. Cook, 162 N. C., 586, 77 S. E., 759; S. v. Dick, 60 N. C., 440. Where the judge himself fails to disregard incompetent evidence, or to eradicate it from his own mind, it would seem to be asking rather much to require a higher standard of the jury. Its harmful effect is obvious. Credit Corp. v. Boushall, 193 N. C., 605, 137 S. E., 721; Morton v. Water Co., 169 N. C., 468, 86 S. E., 294.”

*314We deem it ‘unnecessary to discuss the other exceptions, since they may not arise on a new trial.

New trial.

Citation profile

How this case has been treated — in progress