#### STATE v. GUS COLIN LANGLEY.

(Filed 14 June, 1933.)

1. Homicide B a—

Evidence tending to show that defendant killed the deceased with a deadly weapon while attempting to perpetrate a robbery is sufficient to be submitted to the jury on the issue of first degree murder, O. S., 4200, the credibility and probative force of the evidence being for the jury.

2. Homicide G e — Evidence of defendant’s guilt of murder in the first degree held sufficient to he submitted to the jury.

Testimony of a witness, corroborated by other testimony, that defendant told him while both were in the county jail that defendant had killed the deceased and had prepared an alibi, with testimony of the witness’s good character for truth and honesty, and testimony of the dying declaration of the deceased that he was killed by persons attempting to rob him, is *held,*sufficient to be submitted to the jury on the issue of defendant’s guilt of first degree murder, although defendant introduced testimony of himself and several witnesses that he was in another city the night the crime was committed, the conflicting testimony being for the determination of the jury.

*3.*Criminal Law L e—

The verdict of the jury, based upon correct and full instructions from the court, must stand as returned by the jury and recorded in the minutes of the court, and it may not be disturbed or set aside by the Supreme Court on appeal.

4. Homicide H f — Judgment upon conviction of first, degree murder should recite tli© degree of murder for which sentence is entered.

Where in a prosecution for murder the jury returns a verdict of guilty of murder in the first degree, the judgment of the court, which alone is certified to the warden of the State prison, G. S., 4658, 4659, 4660, must recite that the defendant had been convicted of murder in the first degree, and where it recites that the prisoner had been convicted of murder, and sentences the prisoner to death by electrocution, the case will be remanded for the rendition of a proper judgment upon the verdict.

Appeal by defendant from *McMlroy, J.,*at December Term, 1932, of EuNCOmbe.

No error in the trial; remanded for judgment on the ■verdict.

This is a criminal action in which the defendant, Gus Colin Langley, was tried on an indictment, which is as follows:

“The jurors for the State, upon their oath, present: That Gus Colin Langley, late of Buncombe County, on 19 December, 1932, with force .and arms, at and in said county, did unlawfully and wilfully and feloniously, of his malice aforethought, with premeditation and deliberation, kill and murder one Lonnie G. Bussell, contrary to the form of the statute in such ease made and provided and against the peace and .dignity of the State.”

*688Tbe verdict returned by tbe jury at tbe trial is tbat tbe defendant is guilty of murder in tbe first degree. Tbe verdict is so recorded in tbe minutes of tbe court. Tbe judgment in tbe action as shown by tbe record is as follows:

“Gus Colin Langley, you bave been indicted, tried and convicted by a jury of your, county of tbe murder of Lonnie G. Russell. Tbe law prescribes tbat tbe punishment for your crime is death. Tbe judgment of tbe court, therefore, is tbat you be remanded to tbe common jail of Buncombe County, there to remain until tbe adjournment of this court, and upon tbe adjournment of this court,

It is ordered tbat you be conveyed by tbe high sheriff of said county of Buncombe to tbe penitentiary of tbe State of North Carolina, and by him delivered to tbe warden of said penitentiary;

And it is further ordered and adjudged tbat you remain in tbe custody of said warden until Friday, 10 February, 1933, and tbat on said day, between tbe hours of ten o’clock in tbe forenoon, and three o’clock in tbe afternoon, you be taken by tbe said warden to tbe place of execution in said penitentiary;

And it is further ordered and adjudged tbat tbe said warden then and there cause a current of electricity of sufficient intensity and voltage to cause death, to pass into and through your body until you are dead, and may God bave mercy on your soul.

P. A. MoElROY, *Judge, Presiding.”*

Tbe defendant excepted to tbe judgment and appealed to tbe Supreme Court, assigning errors in tbe trial.

*Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.*

*Styles & Styles for defendant.*

CoNNOR, J.

Tbe evidence offered by tbe State at tbe trial of this action was admitted without objection by tbe defendant. This evidence showed tbat Lonnie G. Russell was shot and fatally wounded at bis filling station in tbe city of Asheville, N. C., between tbe hours of 7 and 9 o’clock, on Tuesday night, 27 September, 1932; tbat be ran out of tbe filling station, calling to tbe driver of a passing automobile, tbat be bad been shot; tbat be got into tbe automobile, saying to tbe driver: “Go slowly by tbe filling station, and see if you can see those men who tried to rob me.” Tbe driver of tbe automobile took tbe wounded man to the Mission Hospital, in tbe city of Asheville, where be died at about 8:50 o’clock tbat night. His death was caused by an internal hemorrhage, which resulted from a gun shot wound. He was in a dying condition when be reached tbe hospital.

*689This evidence was sufficient to support tbe contention of tbe State tbat tbe homicide was murder in tbe first degree as defined by tbe statute. C. S., 4200. If believed by tbe jury, it showed tbat tbe homicide was committed with a deadly weapon, to wit: a gun. It further showed tbat tbe murder was committed in tbe perpetration, or in tbe attempt to perpetrate a robbery. *S. v. Lane,*166 N. C., 333, 81 S. E., 620. Tbe credibility of tbe evidence, and its probative effect to sustain tbe contention of tbe State, were, of course, for tbe jury to determine.

Tbe evidence offered by tbe State, in support of its contention tbat tbe defendant is tbe man who shot and killed Lonnie G. Russell, at bis filling station in tbe city of Asheville, on tbe night of 27 September, 1932, was sharply contradicted by tbe evidence offered by tbe defendant.

Tbe defendant was in Asheville on Monday, 26 September, 1932. He was arrested in Wilmington, N. C., on tbe following .Saturday morning, and was brought by tbe officers who arrested him to Asheville, where be was confined in jail until tbe December Term, 1932, of tbe Superior Court of Buncombe County.

A witness for tbe State testified tbat be was confined in tbe jail at Asheville with tbe defendant for about two weeks during tbe month of November; tbat during this time, tbe defendant talked constantly about tbe killing of Lonnie G. Russell, and said tbat tbe officers of Buncombe County were too dumb to catch any one; and tbat be was tbe man who shot Russell at bis filling station,- in Asheville, on Tuesday night, 27 September, 1932, but tbat be would have witnesses at bis trial who would testify tbat be was in Wilmington at tbe time of tbe shooting. There was evidence tending to show tbat this witness, although be bad been confined in jail under a criminal charge, is a man of good character, at least for truth and honesty. There was also evidence tending to corroborate bis testimony.

Tbe evidence offered by tbe defendant tended to show tbat be, with a companion, left Asheville during tbe morning of Monday, 26 September, 1932, in an automobile, and tbat they arrived in Wilmington, N. 0., on Tuesday, 27 September, 1932, at about 1:30 o’clock, p.m., and tbat defendant was not, therefore, in Asheville on Tuesday night, 27 September, 1932, as contended by tbe State. Tbe testimony of tbe defendant to this effect, was corroborated by tbe testimony of many witnesses who reside in Wilmington or its vicinity.

Tbe conflicting evidence with respect to the guilt of tbe defendant as charged in tbe indictment, was properly submitted to tbe jury. There was no error in tbe refusal of tbe court to dismiss tbe action by judgment as of nonsuit at tbe close of all tbe evidence. Tbe testimony of tbe witness for tbe State tbat tbe defendant told tbe witness in tbe jail at Asheville tbat be shot Lonnie G. Russell, and tbe statement of tbe *690deceased to tbe driver of the automobile, that the men who shot him were trying to rob him, were sufficient as evidence to support the contention of the State that the defendant is guilty of murder in the first degree, as defined by the statute. C. S., 4200. No objection, to this evidence was made by the defendant during the trial. There is no assignment of error in defendant’s appeal to this Court based upon exceptions to the admission of this evidence. There was no error in its admission.

Nor was there error in the charge of the court to the jury. The jurors were properly instructed by the court with respect to the verdict, which they should return upon the facts as they might find them to be from the evidence. The charge was full, fair and correct. The verdict as returned by the jury, and as recorded in the minutes of the trial court cannot be set aside or disturbed by this Court. It must stand as returned by the jury and as recorded in the minutes of the trial court. *S. v. Jackson,*199 N. C., 321, 154 S. E., 402.

There is error, however, in the form of the judgment in this action. It does not appear on the face of the judgment that the defendant has been convicted of a crime which is punishable by death, under the law of this State. It appears only that the defendant has been convicted of murder. It does not appear that he has been convicted of murder in the first degree. The cripie of murder in the first degree is punishable by death, while all other kinds of murder are punishable by imprisonment in the State’s prison. C. S., 4200. The judgment appearing in the record is not sufficient to justify the execution of the defendant by the warden of the State’s prison. It should appear on the face of the judgment, which is alone certified to the warden that defendant has been convicted of a capital felony. C. S., 4658, 4659, 4660.

The action must be remanded to the Superior Court of Buncombe County, to the end that a proper judgment on the verdict as returned by the jury, and as recorded in the minutes of the trial court, may be rendered. See *S. v. Jackson,*199 N. C., 321, 154 S. E., 402. It is so ordered.

Remanded.