By Quеstions 1 and 2 discussed in his well prepared brief, defense counsel argues the evidence for the State, (1) was insufficient to be submitted to the jury on the charge of murder in the first degree; and (2) the court committed error in charging that murder in the first degree was a permissible verdict under the evidence in the case. These questions require a review of the State’s evidence which included the defendant’s confession. The two questions involved the same principle of law and may be considered together.
The evidence disclosed that Bailey E. Wilson, the deceased, was an oil deliveryman in the City of Fayetteville. On January 9, 1970, at about 6:45 p.m., he received a telephone cаll requesting a delivery of heating oil to the home of the defendant. Wilson left alone in his oil truck to make the delivery. About two hours thereafter, his truck ran into a ditch and stalled near a dead-end street on the outskirts of Fayetteville. On account of the peculiar noise of the engine and the frantic efforts of the driver to get out of the ditch, a neighbor became suspicious and *255 called the law enforcement officers. When the officers arrived on the scene, they found the dead body of Bailey E. Wilson in the cab of the truck with his hands and feet tied together by strands of copper wire.
The pathologist, who performed the post mortem, testified he found several abrasions and deep bruises about the hands and feet. “There were four lacerations of the scalp which were up to 3 or 4 inches in length. The edges were kind of ragged. They tended to curve in a front to back directiоn and they were the kind of damage that would be caused by a blunt instrument. The lacerations went through the scalp to the skull. There were four different areas of fracture of the skull. ... I have an opinion satisfactory to myself that his dеath was due to the hemorrhage of the brain as a result of trauma inflicted to the outside of the head.”
The officers found in the truck a ticket showing the delivery of oil to the defendant. The officers immediately went to the defendant’s house where they were admitted and given permission to search. They found on the night stand in the bedroom a duplicate of the oil ticket signed by Wilson, showing the delivery. They found in a garbage can in the kitchen a piece of copper wire similar to the wire which bound Wilson’s hands and feet. They found blood in the house and on the defendant’s clothes. Outside the house near a trash can they found three oak boards, on one of which there were blоod stains. These boards, though introduced in evidence, are not otherwise described in the record.
After being properly advised of his rights, the defendant made a confession. When it was reduced to writing, he signed it before a justice of the peace. The written confession, which was admitted in evidence, contained the following: “Sergeant H. B. Parham ... a deputy sheriff . . . states that he is conducting an investigation of murder of Bailey E. Wilson of which I am a suspeсt and under arrest. I have been told, warned and advised that I have an absolute constitutional right to remain silent and not to answer any question . . . and that anything that I say may be later used as evidence against me. ... I have been told . . . that I have a right to consult with counsel . . . and have been offered the right to telephone any lawyer or member of my family, before making a statement or answering any question. I now of my own free will voluntarily made the *256 following statement: T, Buddy Love, am twenty years old and live ... at 2324 Clinton Road, Apartment Number 1. . . . (M)y wife . . . called Mr. Bailey E. Wilson and told him that we were out of fuel and Mr. Bailey Wilson said that he would deliver the oil to my house. . . . When Mr. Bailey Wilson arrived, he backed his truck up tо the corner of my house and started to fill the oil drum. When he finished . . . and was making out the ticket for the oil, I said, “Mr. Bailey, I don’t have the money to pay for the oil, but I will pay you . . . Monday.” Mr. Bailey Wilson said, “You what? . . . You are going to give me the mоney.” I said, “Bailey, I don’t have the money.” Bailey Wilson put his hand in his pocket and there was a piece of board lying on the ground beside the house. I picked up the board and said, “I don’t have the money, but I will pay you Monday.” Bailеy Wilson stepped towards me and I hit him over the head with the board. Bailey Wilson fell backward and hit his head on the steps to my house, and rolled over and started groaning. . . . I picked up a cord (electrical cord) that was lying on top of the old heater that was setting behind my house and started to tie Bailey Wilson’s legs. Bailey Wilson started to move. I tied his feet together and then tied his hands behind his back. I then drug Bailey Wilson backwards and put his head and body in the seat of the oil truck and then put his legs in last. I got into the truck and drove off to hide Bailey Wilson so that no one could find him. ... I drove down this street and ran into a ditch and got stuck. I tried to get the oil truck out of the ditch, but could not. I heard some peоple coming and I jumped out of the truck and ran. ... I took about two hundred dollars out of Bailey Wilson’s shirt pocket.’ ”
When questioned whether he had been drinking whiskey or beer that night, the defendant answered, “No, sir, but I had taken some scag about eleven p.m. . . . Bailey Wilson arrived at my house about seven-thirty p.m. I had taken about two Darvons, about two tablets.” Officers testified the defendant was normal at the time he made the incriminating admissions.
The defendant stated that he had taken the money from Wilson’s pocket and had hidden it under the sink in the kitchen. The officers searched the place indicated and found $280.00 in twenties, tens and fives.
The indictment in this case is in the usual form charging murder in the first degree. The charge would permit the State *257 to show that the intentional kiling was after premeditation and deliberation or in the perpetration, or attempt to perpetrate, a robbery. However, in this case the court eliminаted robbery and confined the jury to a finding of premeditation and deliberation as prerequisites to the return of a verdict of guilty of murder in the first degree.
“On a motion to dismiss a count in the indictment charging murder in the first degree, the trial court must determine the preliminary question whether the evidence in its light most favorable to the State is sufficient to permit the jury to make a legitimate inference and finding that the defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished the purpose.”
State v. Perry,
The defendant argued that the evidence was insufficient to justify or permit a verdict of murder in the first degree. However, the defendant’s account of the killing is contradicted by many of the circumstances disclosed by the evidence. The results of the post mortem refute defendant’s statement that he struck only one blow. The pathologist testified the wounds caused by four blows were curved from front to back and were similar in shape and depth and that beneath each was a skull fracture. The blood in the house, the duplicate oil ticket on the night stand in the bedroom and copper wire in a trash can in the house tended to contradict the defendant’s statement that one blоw was delivered outside the house and the deceased’s hands and feet were also bound outside the house. The number and ex *258 tent of the fatal injuries, the binding of the victim’s hands and feet while he was still alive, and the attempt to hide his body “so that no one could find him,” with the other circumstances were sufficient to sustain a verdict of guilty of murder in the first degree.
The court charged that the jury, according to its finding of fact from the evidence, should return one of these vеrdicts: (1) Guilty of murder in the first degree; (2) Guilty of murder in the first degree with the recommendation that punishment be imprisonment for life in the State’s prison; (3) Guilty of murder in the second degree; (4) Guilty of voluntary manslaughter; or (5) Not guilty.
The defendant neither testified nor оffered evidence. However, the State, having introduced his confession, he is entitled to claim the benefit of any part thereof which is favorable to him.
State v. McLawhorn,
“The right of self defense is available only to a person who is without fault, and if a person voluntarily, that is, aggressively and willingly, without legal provocаtion or excuse, enters into a fight, he cannot invoke the doctrine of self defense unless he first abandons the fight and withdraws from it and gives notice to his adversary that he has done so.”
State v. Davis,
The defendant’s counsel was diligent in the preparation of the record on appeal and careful to present a number of objections to the court’s rulings, all of which we have examined and have found to be non-prejudicial.
No error.