State v. . Holland
6 S.E.2d 217
N.C.
1939
Check Treatment
Barnhill, J.

When the State rested the defendant moved to dismiss as of nonsuit. The motion was overruled and the defendant excepted. The record discloses that this motion was not renewed at the conclusion of all the evidence and is, therefore, abandoned.

Counsel for the defendant insist that it is their recollection that such motion was renewed. Assuming this to be the 'fact, it will .avail the defendant nothing. The evidence offered was amply sufficient to justify the submission of the cause to a jury.

*614 Assignments of errors Nos. 1, 2, 4 and I all relate to tbe introduction and use in evidence of drawings and photographs of the Sutton Mill site. These exceptions cannot be sustained. The record discloses that the drawings and each of the photographs were properly identified as true representations of the location. In admitting them in evidence the court expressly limited their use for the purpose of illustrating testimony of the witnesses. It excluded them as substantive testimony.

The diagram and photographs were competent for the purposes for which they were admitted. S. v. Spencer, 176 N. C., 709, 97 S. E., 155; S. v. Lutterloh, 188 N. C., 412, 124 S. E., 752. “Such exhibits are generally used to illustrate the locus in quo of a crime, and the admission, not as testimony but as illustrative of testimony, rests in the discretion of the trial court.” Wharton’s Criminal Evidence, 11 Ed., Vol. 2, p. 1316.

Assignment of error No. 5 is directed to the alleged error of the court in permitting the witness Pierce to testify as to an experiment he made with the use of two boards thrown in the pond while the water mill was in operation, to determine the drift or flow of the stream. It did not then appear, and did not appear until the defendant testified, that the mill was not in operation at the time the body of the deceased was found in the pond. When it did so appear there was no motion to strike. Such experiments and evidence as to the result thereof are relevant. 22 C. J., 755; Cox v. R. R., 126 N. C., 103; S. v. Graham, 74 N. C., 646. “Whether or not evidence of experiments is admissible is, under the circumstances of each case, a preliminary question for the determination of the court in the exercise of its discretion, which will not be interfered with by an appellate tribunal unless an abuse is made clearly to appear. Blue v. R. R., 117 N. C., 644; Cox v. R. R., 126 N. C., 103.” S. v. McLamb, 203 N. C., 442, 166 S. E., 507. If the evidence became irrelevant upon the later showing through the defendant that the mill was not in operation on the date of the alleged homicide, defendant’s failure to move to strike was, in effect, a waiver of the exception.

Exceptions to the admission of the evidence of the burial director and the embalmer over objection of defendant cannot be sustained. This witness testified to the fact- of pressure below the Adam’s apple which required incisions in the neck before the tongue could be placed in the proper position. The court expressly excluded any testimony on the part of this witness as to what produced the pressure.

The defendant assigns as error the following excerpt from the charge of the court, to wit: “Now, with respect to the evidence, I charge you that the law looks with suspicion upon the testimony of interested parties, or those testifying in their own behalf, and that you should carefully and cautiously scrutinize the evidence of interested witnesses, if you *615 find them to be interested. It is the province of the jury to consider and decide the weight to be given to such testimony, taking into consideration the conduct and deportment of the witness on the stand, his mental capacity and opportunity to know the facts and the circumstances in relation to the transaction, and the relationship in which the witness stands to the party charged. Such evidence should be taken with a degree of allowance, and not be given the same weight as that of a disinterested witness, but the rule which regards it with suspicion does not reject it, or necessarily impeach it, and if from their testimony, or from it and other facts and circumstances in the case, the jury believes such witnesses have sworn to the truth then they are entitled to as full credibility as any other witness, and you should give their testimony as much as you would the testimony of a disinterested witness.”

Since the adoption of the statute permitting a defendant to testify in his own behalf it has been held that it is not improper, when the defendant has testified in his own behalf, for the presiding judge, in his charge, to instruct the jury that his testimony should be taken “with a grain of allowance” S. v. Green, 187 N. C., 466, 122 S. E., 178; S. v. Nat, 51 N. C., 114; that his testimony should be received with caution and scrutinized with care; S. v. Williams, 185 N. C., 643, 116 S. E., 517; S. v. Barnhill, 186 N. C., 446, 119 S. E., 894; S. v. Byers, 100 N. C., 512, supra; S. v. Lance, 166 N. C., 411, 81 S. E., 1092; “is regarded with suspicion”; S. v. Lee, 121 N. C., 544; S. v. Boon, 82 N. C., 638; S. v. Holloway, 117 N. C., 730. When this is done the court should further instruct the jury, in substance, that after so weighing and considering the testimony of the defendant the jury should give his testimony such weight as it considers it is entitled to, and if the jury believes the witness it should give his testimony the same weight it would give the testimony of any other credible witness. S. v. Holloway, supra; S. v. Collins, 118 N. C., 1203; S. v. McDowell, 129 N. C., 523; S. v. Leesupra; S. v. Barnhill, supra; S. v. Williams, supra; S. v. Green, supra. There is no hard and fast form of expression or consecrated formula required but the jury may be instructed that as to the defendant the jury should scrutinize his testimony in the light of his interest in the outcome of the prosecution but that if after such scrutiny the jury believes that the witness has told the truth, it should give his testimony the same weight it would give the testimony of any other credible witness. S. v. Green, supra.

Counsel for the defendant concedes that the rule as stated in the fore-going excerpt from the charge has been approved by this Court with the exception of the use of the word “suspicion” in the latter portion thereof. Having instructed the jury “that the law looks with suspicion upon the testimony of interested parties, or those testifying in their own behalf,” *616 it was the duty of the court to qualify this statement, as it did, by stating “but the rule which regards it with suspicion does not reject it, or necessarily impeach it, and if from their testimony, or from it and other facts and circumstances in the case, the jury believes such witnesses have sworn to the truth then they are entitled to as full credibility as any other witness, and you should give their testimony as much weight as you would a disinterested witness.” We cannot conceive that this was harmful to the defendant under the existing rule. It would have been error to have omitted this qualification.

' The exceptions of the defendant directed to the failure of the court to define “feloniously” and “willfully” cannot be sustained. An intentional killing is a willful killing. One who in furtherance of a fixed'design kills another in cold blood is guilty of a felonious killing. In fact, any intentional killing without just cause, excuse or justification is felonious. The court fully charged the jury upon the law of murder. The definitions and explanations in respect thereto included the meaning of a willful and felonious killing. We cannot conceive that it would have been helpful to the defendant for the court to proceed further to give definitions of these two words. Certainly it was not error for it to fail to do so in the absence of special prayer by the defendant.

We have carefully examined the other assignments of error contained in the record and brought forward and debated in the brief of the defendant. None of them can be sustained.

The defendant has been accorded a fair trial under a charge which is full and complete. While the defendant offered evidence which tends to contradict the testimony of the State’s witnesses, it was for the jury to determine the facts. It has done so adversely to the defendant. We can find no cause for disturbing the verdict or the judgment.

No error.