117 N.C. 811
N.C.
1895

STATE v. GADBERRY

No. 813

Supreme Court of North Carolina

February 11, 1895

117 N.C. 811

All the evidence for the State tended to show murder in the first degree. The facts showing the character of the homicide appear in the opinion of the Court and in the dissenting opinions. There are no exceptions to the evidence.

The court instructed the jury, after reciting all the evidence, that if they believed the evidence to be true beyond a reasonable doubt the prisoner was guilty of murder in the first degree. The court explained to the jury the degrees of murder, and also stated that the credibility of the evidence was a question peculiarly for the jury, and that in a case of this importance the jury should exercise great care and weigh the evidence well, and be fully convinced of its truth before convicting.

The defendant was convicted, and appealed assigning as error the instruction of the court that if the jury believed the evidence the defendant was guilty of murder in the first degree. The facts in this case present a very bad tragedy, to use no stronger word. But we have nothing to do with that. This is a court of appeals upon errors of law appearing in the transcript of record. We do not try the prisoner, but simply pass upon the correctness of the trial below. And, if we shall find error in the trial below, this does not acquit the prisoner, but only sends the case back for another trial.

The State introduced evidence showing the homicide, that defendant was the author of the homicide, and the attending and surrounding circumstances, and rested the case. The defendant introduced no evidence, and the court charged the jury, if they believed the (813) evidence, the defendant was guilty of murder in the first degree. This charge is the error assigned and complained of by the defendant.

The evidence, as the case comes to us, would have been sufficient to have authorized the court to instruct the jury that if they believed the evidence it would be their duty to find the defendant guilty of murder, prior to the act of 11 February, 1893 (Acts 1893, p. 76), and guilty of murder in the second degree under this act. But this act created an era in the law of homicide in this State. Before that time we had but one offense of murder, and the penalty for this offense was death. But the act of 1893 divided murder into two degrees, first and second degrees. This act continues the death penalty as to the first degree, but makes the penalty for murder in the second degree imprisonment in the penitentiary for not less than two and not more than thirty years. It enacts in section 1: “All murders which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture [torture], or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed to be murder in the first degree, and shall be punished with death.” Section 2: “All other kinds of murder shall be deemed murder in the second degree and shall be punished with imprisonment of not less than two nor more than thirty years in the penitentiary.” Section 3: “. . . But the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.”

This statute being of recent date, we have had but few cases (814) before us involving its construction. Many of the States of the Union had preceded us in enacting this and similar statutes, Pennsylvania being the first. She passed a statute, from which ours is taken, and very nearly, if not entirely, the same as the Pennsylvania statute of 1794. The fact was called to our attention on the argument both by the Attorney-General and Mr. Holton, who argued the case for the defendant. And as the Pennsylvania statute had often been before the Pennsylvania Court for construction — which Court is recognized as one of the ablest in the Union — we were recommended by both these attorneys to consult the Pennsylvania reports, and both cited us to Pennsylvania decisions construing their statute.

The Attorney-General referred to the case of Comrs. v. Smith, in 2 Serg. R. 300, decided in 1816, which seemed to support his contentions; while on the other hand the counsel for the defendant cited Lane v. Comrs., 59 Pa. St., 371, delivered in 1868. This case seems to have been thoroughly considered; and from the fact of the high standing of the Court as well as the fact that we were referred specially to this Court for aid in construing our statute, which is almost, if not identically, the same as theirs, and from the further fact of the great similarity in the facts and the charge of the court in that case to ours, we are induced to make several quotations from that case. The defendant in that case was indicted from the murder of his wife, and “the Commonwealth gave evidence that the deceased died by means of poison, and that it had been administered to her by the prisoner.” The court charged the jury: “If your verdict is `Guilty of murder\’ you must state `of the first degree\‘; if `Not guilty,\’ you say so, and no more.” The jury returned a verdict of murder in the first degree. The prisoner sued out a writ of error, and the Supreme Court delivered thereon the opinion from which we are (815) quoting. The Court say, in discussing this charge: “Hence, it would seem to be more than ever material that the jury be charged with the responsibility and duty of finding the degree. That it is a material fact to be found is not to be denied or doubted. The statute makes it so, and with it all our decisions accord. But it is argued that, where the facts bring the case within either of the killings declared murder in the first degree, it being the duty of the jury to find a verdict in accordance therewith, a peremptory direction to find that degree is proper and right. To admit this would be to determine that this portion of the verdict is a matter of form, and to substitute a court to do that which the law says the jury shall upon their oaths do. . . . Many men have been convicted of murder in the second degree who, really guilty of a higher crime, would have escaped punishment altogether but for the distinction in degrees so carefully committed to juries by the statute.” In Rhodes v. Comrs., 48 Pa. St., 396, the theory of the prosecution was that the murder was committed by the prisoner in perpetrating the crime of robbery, for the prosecutor\‘s house was robbed that day; and the prosecution claimed a conviction on that ground; and the Judge, in his charge to the jury, used almost the same language which the Judge did in this case. The language was: “If you find the defendant guilty your verdict must state `Guilty of murder in the first degree, in the manner and form as he stands indicted.\’ If not guilty your verdict will simply be `Not guilty.\‘” The same reason was urged in justification of this instruction as was urged here, namely, that the evidence exhibited a case of robbery by the hands of the prisoner, and therefore it must be murder in the first degree, if anything. For so instructing, that Court felt constrained to reverse the sentence. Wood, C. J., after noticing the change made by the statute in the common law in (816) respect to degrees in murder, and the duty of the jury under the statute to find the degrees, said: “Yet the Judge assumed the province of the jury and ascertained the degree in this instance, though this was a conviction by trial, and not by confession. Nothing less can be made out of his words, `If you find the defendant guilty your verdict must state `Guilty of murder in the first degree. `Was this leaving the degree to the jury to find? Most clearly not. It excluded all chance of deliberation on the degree, and left to them only the question of guilty or not guilty. It is in vain to argue that the Judge was more competent to fix the degree than the jury, or that the circumstances proved the crime to be murder in the first degree, if murder at all; for the statute is imperative that commits the degree to the jury. It was proper for the Judge to advise them of the distinction between the degrees, to apply the evidence, and to instruct them to which of these degrees it pointed. But to tell them they must find the first degree was to withdraw the point from the jury, and decide it himself . . . The charge being intended to be peremptory, . . . we think it impinged too strongly on the province of the jury. It did not leave them free to deliberate and fix a degree. . . . The Judge decided it, and not the jury. . . . The court always leaving them [the jury], however, free to deliberate upon and the duty and responsibility of finding the degree, if they convict.” So we see that, so far as the case of Lane v. Comrs. is concerned, it settles this case, if we adopt it as authority; and, while we do not feel bound to do this, we see no reason why we should not. It is construing a statute identical with ours. It is from a court of high authority, and appears to have been well considered and well discussed. We have no opinions of our own to conflict with it. (817) In fact, the principal case we have where this statute is discussed (S. v. Fuller, 114 N.C. 885), so far as it goes, is in harmony with the reasoning in this Pennsylvania case. The reasoning, to our minds, is so clear and sound we feel no hesitation in adopting it, which we do, and it disposes of this case. It fully covers both views of it presented by the Attorney-General — that the court below should be sustained because it appeared the prisoner was in the act of committing another felony, to-wit, the abduction of the deceased at the time the homicide took place, which put the case within the first degree; and, secondly, that the jury would have found the same issue from the evidence if the court had left it to them to determine. But we see from the reasoning in Lane\‘s case, supra, that neither of these positions can be sustained. The statute in our State, as it does in Pennsylvania, by express terms confers this duty upon the jury to determine the degree, and it cannot be taken from them by the court.

There were other views of this case presented by the defendant, but, being so well convinced that the consideration of the construction of the statute determines the case, we have not thought it necessary to enter into a discussion of them.

There is error, and a venire de novo is ordered.

Venire de novo