(1) The exceptive assignment principally pressed on tbis appeal is the refusal of the court to allow defendant’s motion for judgment as of nonsuit on the first degree murder charge made in compliance with thе statute. C. S., 4643. The motion challenges the sufficiency of the evidence to show premeditation and delibеration beyond a reasonable doubt.
S. v. Bittings,
It is pertinent, therefore, to refer to principles apрlicable to the case in hand.
Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. C. S., 4200.
S. v. Payne,
The intentional killing of a human being with a deadly weapon implies malice and, if nothing else appears, constitutes murder in the second degree. S. v. Payne, supra, and cases cited.
“The additional elements of premeditation and deliberation, necessary to constitute murder- in the first degree, are not presumed from a killing with a deаdly weapon. They must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree can be rendered against the prisoner.”
S. v. Miller,
“Premeditation means 'thought beforehand’ for some length of time, however short.”
S. v. Benson,
“Deliberation means that the act is done in cool state of blood. It does not mean brooding over it or reflecting upon it for a week, a day or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state оf blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlаwful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just causе or legal provocation.” S . v. Benson, supra; S. v. Payne, supra.
Evidence of threats are admissible and may be offered as tending to show premeditation and deliberation, and previous express malice, which are necessary to сonvict of murder in the first degree. S. v. Payne, supra, and cases cited.
“General threats to kill not shown to have any reference to decеased are not admissible in evidence, but a threat to kill or injure someone not definitely designated arе admissible in evidence where other facts adduced give individuation to it.”
S. v. Shouse,
“The manner of the killing by defendant, his aсts and conduct attending its commission, and his declaration immediately connected therewith,
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were evidence of express malice.”
S. v. Robertson,
“In determining tbe quеstion of premeditation and deliberation it is proper for tbe jury to take into consideration tbe conduct of tbe prisoner, before and after, as well as at tbe time of, tbe homicide, and all attending circumstances.”
Stacy, C. J.,
in
S. v. Evans,
Applying these well settled principles, tbe evidence in tbe case at bar is sufficient tо be submitted to tbe jury on tbe first degree murder charge. Tbe threat at tbe scboolbouse, though general, was given individuation when tbe defendant, within two and a half hours after making it, did tbe very thing be threatened to do — killed a girl. And it is pertinеnt both on malice and on premeditation and deliberation. His declaration and conduct immediatеly after committing tbe act manifests a coolness worthy of consideration by tbe jury. Tbe statement to tbe officers, “I killed her because I loved her, and I told her if I ever caught her I was going to kill her” is expressive of sрecific threat. Then, too, tbe atrocious manner in which be cut her throat is evidence of express malice and a fixed purpose to make the deed complete.
(2) Did tbe court below commit error in failing to charge tbe jury on tbe presumption of innocence of defendant. This question has been decided adversely to defendant in tbe cases of
S. v. Boswell,
(3) There is exception to this portion of tbe charge: “And I charge you that in order for this plea of insanity to be a cоmplete defense in this case, you must find that tbe prisoner at tbe time be killed deceased was incaрable of having a criminal intent.” This is part of a sentence in which tbe court correctly charged on tbe burden of proof upon this plea. It is contended that tbe portion to which exception is taken is аn expression of opinion forbidden by C. S., 564. This position is not well taken. It is settled law in this State that when, in a homicide case, tbe defendant interposes a plea of insanity, be says by this plea that be did tbe killing, but tbe act is one for which be is not responsible.
S. v.
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Terry,
(4) Exception, is taken to wbat is contended by defendant to be a misstatemеnt of tbe evidence by tbe court in stating a contention of tbe State. If incorrectly stated, tbe matter wаs not called to tbe attention of tbe court at tbe time, and cannot be beld for prejudicial error.
S. v. Burton,
After most careful consideration, we are of opinion tbat tbe case bas been fairly tried, and we find
No error.