#### STATE v. HARVEY LAWRENCE.

(Filed 24 September, 1930.)

1. Criminal Law I c — Mere presence of guards during trial does not prejudice defendant and is not ground for new trial.

Tie mere fact that the officers of the court guarded the outside of the court-room with State militia during the course of the prisoner’s trial in a criminal prosecution, for the prisoner's protection, does not alone entitle the prisoner to a new trial on appeal upon the ground that a fair and impartial trial, guaranteed by the Constitution, had not been given him, where it appears that no demonstration had been made against him or anything done that could have prejudiced his rights, and his exception to the refusal of the trial court to allow his motion that the guard be dismissed will not be sustained on appeal, ordinarily matters of this kind being within the sound discretion of the court.

2. Criminal Law L g — Supreme Court is confined to matters of law or legal inference on appeal in criminal cases.

The Supreme Court is confined to matters of law or legal inference upon an appeal in a criminal prosecution. Article IV, section 8.

3. Criminal Law B a — In this case held: question of whether defendant was too intoxicated to have criminal intent was for jury.

Where the prisoner on trial for a capital felony relies upon his evidence tending to show that he was too intoxicated at the time of the commission of the crime to have a criminal intent, and there is evidence to the contrary offered by the State, the conflicting evidence raises an issue of fact for the determination of the jury under proper instructions from the court.

4. Criminal Law L d — Where instructions do not appear of record they will he deemed to he without error.

Where the charge of the trial court to the jury does not appear of record on appeal it will be conclusively presumed that the court correctly charged the law arising upon the evidence.

Appeal by defendant from *Midyette, J.,*at April Special Term, 1930, of Hebteokd.

No error.

At bis trial on an indictment for burglary, the defendant in this action was convicted of burglary in the first degree. C. S., 4232. From judgment that he suffer death by means of electrocution, as prescribed by statute, C. S., 4233, defendant appealed to the Supreme Court.

*Attorney-General Bru/mmitt a,nd Assistant Attorney-General Nash for the State.*

*A. T. Costelloe and, V. D. Strickland for defendant.*

ConNOr, J.

On his appeal to this Court the defendant contends that

if the judgment from which he has appealed is affirmed, and executed as *482required by statute, be will be deprived of bis life, without due process of law, for tbat tbe trial at wbicb be was convicted and sentenced to death, was conducted under such conditions tbat it was not a fair and impartial trial according to tbe law of tbe land. Upon this contention, defendant prays tbat a new trial be granted him by this Court.

It appears from tbe statement of tbe case on appeal in tbe record, tbat there was present during tbe trial in tbe Superior Court a guard consisting of twenty-eight armed members of tbe State militia. This guard was present for tbe purpose of protecting tbe defendant during tbe trial from apprehended violence and of assuring tbe defendant a fair and impartial trial. There is nothing in tbe record tending to show the ground of such apprehension. There was no manifestation, either before or at tbe trial, of any ill-will toward tbe defendant on tbe part of citizens of Hertford County, or of any purpose on their part to prevent or interfere with an orderly trial, by violence or otherwise. The guard was doubtless provided because it was apprehended by tbe sheriff of Hertford County and others whose duty it was to protect tbe defendant, and assure him a fair and impartial trial, tbat, because of tbe nature of tbe crime with wbicb tbe defendant was charged, there might be some outburst of feeling against tbe defendant on tbe part of those who should attend tbe trial, followed by some attempt to do him barm. Fortunately, there was no such outburst. Tbe presence of tbe guard in the courthouse yard and tbe jail nearby did not prejudice tbe defendant. The learned and experienced judge who presided at tbe trial, at tbe request of counsel for defendant, excluded tbe members of tbe guard from tbe court-room during tbe trial. His denial of defendant’s motion tbat the guard be dismissed and sent away, was not error for wbicb defendant is entitled to a new trial. This motion was addressed to bis discretion, and bis ruling, in tbe absence of a palpable abuse of such discretion, cannot be reviewed by this Court. As was said in *Rawls v. Lupton,*193 N. C., 428, 137 S. E., 175, “We have no power here except to review upon appeal decisions of tbe courts below upon matters of law or legal inference.” Const, of N. C., Art. IY, sec. 8.

We cannot bold tbat where as in tbe instant case tbe executive officers of tbe State have provided an armed guard for tbe protection of a defendant in a criminal action, during bis trial, from apprehended violence or from manifestations, during tbe trial, on tbe part of those present, of ill-will toward tbe defendant, tbe mere presence of tbe guard at tbe trial deprives tbe defendant of a fair and impartial trial — such as be is entitled to under tbe laws of this State. Ordinarily, matters of this kind are within the discretion of tbe presiding judge, whose duty it is to see tbat conditions surrounding tbe trial are not prejudicial to tbe defendant. *S. v. Newsome,*195 N. C., 552, 143 S. E., 187.

*483It is not contended on tbis appeal tbat tbe evidence offered at tbe trial by tbe State was not sufficient to support tbe verdict tbat defendant is guilty of burglary in tbe first degree as charged in tbe indictment; nor is it contended tbat evidence offered by tbe State was submitted to the jury over tbe objection of defendant, or tbat evidence offered by tbe defendant was excluded upon objection by tbe State. Tbe evidence set out in tbe case on appeal, admittedly competent in all respects, was amply sufficient to sustain tbe verdict.

Tbe defendant for bis defense relied upon evidence offered by him tending to show tbat be was so intoxicated, as a result of drinking whiskey, at tbe time tbe evidence offered by the State 'tended to show tbat be broke and entered tbe dwelling-house as charged in tbe indictment, tbat be was incapable of forming tbe unlawful intent charged, which was an essential element of tbe crime. *S. v. Allen,*186 N. C., 302, 119 S. E., 504. There was evidence, however, offered by tbe Statej tending to show tbat defendant was not intoxicated, as be contended, and tbat be was not under tbe influence of whiskey at tbe time tbe crime was committed. As there was no exception to tbe charge of tbe court to tbe jury — the charge not appearing in tbe case on appeal prepared by counsel for defendant, and accepted by tbe solicitor for tbe State — it must be conclusively presumed tbat tbe conflicting evidence was properly submitted to tbe jury under correct instructions as to tbe law applicable to tbe facts as tbe jury should find them from tbe evidence.

Where tbe charge of tbe court to tbe jury is not included in tbe case on appeal certified to tbis Court, it is presumed tbat it was not prejudicial to tbe appellant. *S. v. Sigmon,*190 N. C., 684, 130 S. E., 854; *S. v. Carivey,*190 N. C., 319, 129 S. E., 802; *In re Westfeldt's Will,*188 N. C., 702, 125 S. E., 531; *Indemnity Co. v. Tanning Co.,*187 N. C., 190, 121 S. E., 468; *Bank v. Wysong,*177 N. C., 284, 98 S. E., 769; *Ellison v. Telegraph Co.,*163 N. C., 5, 79 S. E., 277.

Defendant’s only assignment of error on bis appeal to tbis Court is based upon bis exception to tbe refusal of tbe court to allow bis motion tbat tbe guard, provided for tbe protection of defendant during bis trial, be dismissed. Tbis assignment of error cannot be sustained. We find no error on tbe record. Tbe judgment is, therefore, affirmed.

No error.