In re McKay, 183 N.C. 226-228; S. v. Morse, 171 N.C. 777; S. v. Cloninger, 149 N.C. 578; S. v. Traylor, 121 N.C. 674; S. v. Hice, 117 N.C. 782." See, also, S. v. McMahan, 228 N.C. 293, 45 S.E.2d 340; S. v. Wagstaff, 219 N.C. 15, 12 S.E.2d 657; S. v. Ferrell, 202 N.C. 475, 163 S.E. 563; S. v. Whaley, 191 N.C. 387, 132 S.E. 6. Following the precedent set in the Moore Case, a new trial will be ordered here.
See, People v. Elliott, 163 N.Y. 11, 57 N.E. 103; People v. Childs, 85 N.Y.S. 627, 90 App. Div. 58, 18 N.Y. Cr. 114, and Commonwealth v. Chester, 77 Pa. Sup. 388. Secondly, notwithstanding that instructions containing the words "the law presumes," etc., have been approved by some appellate courts (See, Prater v. State, 107 Ala. 26, 18 So. 238), we are satisfied that it may not properly be held that there is a presumption of law that a person of good character is less likely to commit a crime than a person of bad reputation. Knight v. State, 22 Ala. App. 557, 117 So. 804; Crews v. State, 22 Ala. App. 564, 117 So. 801, and State v. Ferrell, 202 N.C. 475, 163 S.E. 563. When defendant so asks an improper instruction on the subject of character, he has no ground for complaint if none at all is given. State v. McNamara, 100 Mo. 100, 13 S.W. 938.
This was sufficient. S. v. Rose, 200 N.C. 342; S. v. Herring, 201 N.C. 543; S. v. Ferrell, 202 N.C. 475. Both in the oral argument and by brief the counsel for the defendant forcefully presented his view that there was error in the charge of the court as to second degree murder and as to the effect of intoxication upon the capacity of the defendant to form the intent necessary to sustain the charge of murder in the first degree.