State v. . Kendall
57 S.E. 340
N.C.
1907
Check Treatment
Hoxe, J\,

аfter stating the case: The verdict shows, necessarily, that' the jury have rejected the evidence of the prisoners in denial of their guilt and tending to establish an alibi, and have accepted the testimony of the State; and this being true, defendants may well fеel that they have been mercifully -dealt with by the verdict and that every reasonable doubt arising on this testimony has been resolvеd in their favor.

It is objected to the validity of the trial that one of the jurors was permitted to ask a question of a witness who was then upon the stand giving his testimony. There is no reason that occurs to us why this should not be allowed in the sound legal discretion of the Court, and where the question asked is not in violation of the ‍‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‍general rules established for eliciting testimony in such cases. This course has always been followed without objection, so far as the writer has observed, in the conduct of trials in our Superior Courts, and therе is not only nothing improper in it when done in a seemly manner and with the evident purpose of discovering *663 the truth, but a juror may, and oftеn does, ask a very pertinent and helpful question in furtherance of the investigation. Authority is also in favor of the Court’s action in permitting the question. Schaffer v. Railroad, 128 Mo., 65.

The prisoners further except because the Court refused to give their prayers for instruction that, “If the jury find that thе deceased was slain by one of the prisoners, and are not satisfied beyond a reasonable doubt as to which onе, thoir verdict should be, ‘Not guilty.’ ” This prayer is defective in ‍‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‍that it entirely ignores the view, and the evidence which tends to support it, that one may have been present aiding and abetting the other, and that' the killing may have been done in furtherance of a conspiracy between them. This limitation on the position stated in the above prayer is suggested in State v. Finley, 118 N. C., 1162, the authority relied upon by the prisoners to sustain them in their exception. The prayer, with the proper modification arising from the testimony, was correctly and fairly given by his Honor in a portion of the general charge, as follows:

“If the State has satisfied you beyond a reasonable doubt that Lawrence Nelson was unlawfully killed on 25 September, 1906, then it is your duty to go one step. further to ascertain whether оr not the defendants, or either of them, did the killing. If the evidence satisfies you beyond a reasonable doubt that he was killed by onе or the other of the defendants, both being present, and you are not satisfied beyond ‍‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‍a reasonable doubt which one killеd him, then it would be your duty to acquit them both, unless the evidence satisfies you beyond a reasonable doubt that they were there tоgether aiding and abetting or encouraging each other, or that they formed a conspiracy and got Mag Lewis to entiсe him out there in the woods, and went out there in pursuance of that conspiracy, and one killed him in the presence оf the other.”

It is further objected in this connection, that there was no *664 evidence tending to establish a conspiracy, but a reference to the testimony contained in the record affords ample evidence of a common purposе — that one was present aiding and abetting ‍‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‍the other, and further discussion of this objection is not required. Objection is further made that' thе Judge below gave an incorrect charge in the question of manslaughter, as follows:

“Whenever it is admitted or established to the satisfaction of a jury and beyond a reasonable doubt that one man kills another with a deadly weapon, the law prеsumes that the killing was done with malice and places the burden on the defendant to satisfy the jury beyond a reasonable doubt by thе greater weight of the evidence that he killed the deceased under circumstances that would mitigate the crime to mаnslaughter or excuse it altogether.” The error assigned being that matter in mitigation is not required to be proved beyond a reаsonable doubt. The position of counsel is correct in this. This Court has repeatedly held that facts and circumstances of this character need only to be proved to the satisfaction of the jury. State v. Clark, 134 N. C., 698; State v. Byrd, 121 N. C., 684. But the mistake, which was, no doubt, an inadvertence on the part of the trial Judge, does not constitute reversible error, for the reason that ‍‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌​‌‌​‌‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‍it was made in presenting the question of manslaughter, and in no aspect of the testimony is there any feature of manslaughter in the case.

It is a principle vеry generally accepted that on a charge of murder, if there is any evidence "to be considered by the jury which tends tо reduce the crime to manslaughter, the prisoner, by proper motion, is entitled to have this aspect of the case presented under a correct charge; and if the charge given on this question be incorrect, such a mistake will constitute reversible error, even though the prisoner should be convicted of' a graver crime, for it cannot be then known *665 ■whether, if the case had been presented to the jury under a correct charge, they might not have rendered their verdict for the lighter offense. Put where there is an entire absence of any evidence tending to establish the crime of manslaughter, and the рrisoner has been convicted of murder, a mistake in the charge of the Court as to manslaughter is considered harmless errоr, and for such error the verdict and judgment will not be disturbed. State v. White, supra; State v. Gapps, 134 N. 0., 622; State v. Utley, 132 N. C., 1022; State v. Foster, 130 N. C., 666. And so it is here. There is abundant evidence from which the prisoners might have been convicted of murder in the first degree. There are phases of the evidence which justify 'the verdict as rendered. But assuming that оne of the prisoners fired the fatal shot while the other was present, aiding and abetting — and this view the jury have adopted under а correct charge — there is no evidence which tends to reduce the killing to manslaughter or to make out, in their favor, a ease of excusable homicide. There is no evidence tending to show that deceased was killed in the anger aroused by a sudden combat into which the prisoners had • unexpectedly entered; none which tends to rebut the malice implied by thе law when one has been intentionally killed with a deadly weapon. State v. Chavis, 80 N. C., 353; State v. Peter Johnson, 48 N. C., 266. The other exceptions are without merit, and the judgment below is affirmed.

No Error.