#### STATE v. ANDREW LEFEVERS, BRUCE DUCKWORTH, HARRY BOWMAN and NEWLAND LEFEVERS.

(Filed 22 November, 1939.)

1. Assault and Battery § 11: Criminal Law § 53b — Case must be submitted1 to the jury if evidence considered in light favorable to State is sufficient to sustain verdict of guilty.

The evidence tended to show that the four defendants, the prosecuting witness and the wife of the prosecuting witness were riding together in an automobile, that one of the defendants held the witness and another defendant cut him with a knife, that the third defendant struck him over the head and that the fourth defendant told the prosecuting witness’ wife to keep quiet, he was going to kill the prosecuting witness, *is held*sufficient to be submitted to the jury as to the guilt of each of defendants of assault with a deadly weapon, notwithstanding evidence on the part of defendants that the defendant who cut the witness did so in self-defense in an altercation solely between them, and that the other defendants did not aid or abet him therein. C. S., 4643.

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3. Assault and Battery § 10: Criminal Law § 39e—

Evidence tending to show ill will between the prosecuting witness and the defendant, arising from the destruction of certain whiskey stills by-officers of the law, is competent for the purpose of showing motive.

S. Criminal Law § 78c—

Where part of the answer of a witness is not responsive to the question propounded, defendant, if he deems it prejudicial, should request the court to strike it from the record and to instruct the jury not to consider it.

*4954. Criminal Law § 411b—

When testimony elicited from defendant’s witness on cross-examination is confined by the court to the question of the witness’ credibility, defendant’s exception thereto cannot be sustained.

5. Criminal Law § 81c—

Exceptions to the charge of the court will not be sustained when the charge is free from prejudicial error when read contextually as a whole.

6. Criminal Law § 53e—

A charge to the effect that the trial of the cause involved heavy expense to the county and that it was the duty of the jury to continue their deliberations and decide the issue, will not be held for error when the court, immediately following such instruction, charges the jury that it was its duty to try to come to some agreement and that the court was not attempting to force it to agree.

Ajpeal by defendants from *Armstrong, J.,*at June Term, 1939, of Burke.

Tbe defendants were convicted of an assault witb a deadly weapon, to wit: a knife, upon one O. A. Mull.

Tbe State’s evidence tended to sbow tbat tbe four defendants, together witb 0. A. Mull and bis wife, were riding in an automobile driven by Andrew Lefevers; tbat Mull and bis wife and one Fred Sbuping were riding on tbe front seat witb tbe driver, and tbat tbe defendants Duck-worth, Bowman and Newland Lefevers, witb Bill Branch, were riding on tbe back seat; tbat Andrew Lefevers took bis foot off of tbe accelerator and laid bis arm around Mull and said, “I’ve got tbe s. o. b., kill him,” and immediately Harry Bowman cut tbe prosecuting witness about tbe neck and ear, and tbat Bruce Duckworth struck him over the bead, tbat Newland Lefevers bad a blackjack and when tbe wife of Mull screamed be told her to “shut her damn mouth” tbat be was going to kill her husband.

Tbe defendants’ evidence tended to show tbat 0. A. Mull took offense at Harry Bowman’s speaking of Mull’s brother as a “weasel face manj” and attacked Bowman witb bis knife, cutting bis shirt just over tbe heart, and tbat Bowman cut Mull in self-defense; and tbat none of tbe other defendants aided or abetted Bowman in doing what be did in cutting Mull.

Tbe jury returned a verdict of guilty of an assault witb a deadly weapon as to all four of tbe defendants, and from judgments of imprisonment, tbe defendants appealed, assigning errors.

*Attorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.*

*Hatcher & Berry and I. T. Avery for defendants, appellants.*

*496Schenck, J.

While the evidence was conflicting and may have justified an acquittal, when taken in the light most favorable to the State it sustains the verdict, and for that reason the defendants’ motions to dismiss the action under C. S., 4643, were properly denied.

The defendant Bruce Duckworth assigns as error the testimony of the witness C. A. Mull, that “He (Bruce Duckworth) met me near my home and there had been several stills cut down; and he asked me had I not reported them stills; he was making liquors. When I said No, that I had not reported it, he said it was going to cause trouble.” This assignment is untenable for the reason that the testimony was competent for the purpose, if no other, of showing motive, which though not always necessary to be shown is always competent to be shown in the trial of a criminal action. *S. v. Wilkins,*158 N. C., 603. The statement “he was making liquors” was not responsive to the question propounded, and the defendant, if he deemed it prejudicial, should have requested the court to strike it from the record and to instruct the jury not to consider it. *S. v. Green,*152 N. C., 835.

The assignments of error relating to questions propounded to the defendants’ character witness, Oausby, on cross-examination, as to whether the defendant Andrew Lefevers did not have the general reputation of starting and engaging in fights, are untenable since it appears in the record that the court instructed the jury not to consider the answers against Andrew Lefevers, but only to consider it as bearing upon the credibility of the witness then testifying. *S. v. Holly,*155 N. C., 485.

There are many assignments of error to excerpts from the charge. We have examined all of these with care and are of the opinion that when the excerpts are read contextually with the whole charge, and not disconnectedly and disjointedly, they are free from prejudicial error. The most serious of these assignments relate to that portion of the charge which, with the context, reads: “That this case took a good little time to' try and about a half a day in the argument and the charge of the court and some jury in this county have to pass on it, and you have been selected and sworn to decide, and it is your duty to decide it because it is an expense to the county to retry it. And it is your duty to try to come to some agreement. I am not trying to force you to agree on this case- and you may go back to the jury room and continue your deliberations. . . . Remember about the expense of this case and the fact that someone has to try it. You are intelligent men and can try it as well as. any men in the county.”

In *S. v. Brodie,*190 N. C., 554 (558), where exception was preserved' to an almost similar instruction to the one assailed in the case at bar, it is said: “But in the instruction complained of there is no intimation of an opinion either as to the weight of the evidence or as to the guilt or *497innocence of tbe defendant. His Honor told tbe jury that a mistrial would be unfortunate, but be was very careful to say, while be hoped they would come to an agreement, be bad no desire to force or coerce a verdict. In doing so be exercised tbe prerogative of a judicial officer, and in bis instruction there is nothing which warrants a new trial.” While bis Honor in tbe case at bar told tbe jury “it is your duty to decide it,” be immediately 'followed this instruction with tbe words “it is your duty to *try*to come to some agreement,” and “I am not trying to force you to agree.” We think tbe instructions when read as a whole left tbe jury free “to try to come to some agreement” uninfluenced by tbe fact that a mistrial would result in additional cost to tbe county, and that there was no breach of tbe judicial prerogative.

No error.