State v. . Lewis

Jan 22, 1936

Versions:209 N.C. 191

183 S.E. 357

1936 N.C. LEXIS 421

Clarkson, J.

At the close of the State’s evidence and at the close of all the evidence, the defendant made motions in the court below for judgment as in case of nonsuit. (N. C. Code, 1935 [Michie], sec. 4643). Thе court below overruled these motions, and in this we can see no error.

“In order to constitute deliberation and premeditation, something more must appear than the prior existence of actual malice, or the presumption of malice which arises from the use of a deadly weapon. Though the mental process may require but a moment of thought, it must be shown, so аs to satisfy the jury beyond a reasonable doubt that the prisoner weighed and balanced the subject of killing in his mind long enough to consider the reason or motive which impelled him to act, and to fоrm *194 a fixed design to kill in furtherance ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of such purpose or motive. S. v. Thomas, 118 N. C., 1113. Premeditation is thought beforehand for any length of time, however short. The intent to kill in other degrees of unjustifiable homicide, but to cоnstitute murder in the first degree that intent must be formed into a fixed purpose by deliberation and premeditation. The statute simply divides murder into two classes; murder with a specific premeditated and deliberate intent to take life being murder in the first degree; murder without such intent being murder in the second degrеe.” Jerome’s Criminal Code and Digest of N. C. (5th Ed.), p. 466. S. v. Bittings, 206 N. C., 798.

In S. v. Cagle, ante, 114, it is said: “Defendant’s motion for nonsuit was properly deniеd. As was said in S. v. Johnson, 184 N. C., 637: ‘We could not nonsuit the State, . . . for when there is a killing with a deadly weapon, as there was in this case, the law implies malice, and it is, at least, murder in the second degree, and the burden then rеsts upon the prisoner ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to satisfy the jury of facts and circumstances in mitigation of or excuse fоr the homicide, the credibility of the evidence, and its sufficiency to produce this satisfactiоn being for the jury to consider and decide.’ ”

There is ample evidence of premeditatiоn and deliberation. The evidence, before the defendant went to the house of the deсeased: “If I should happen to go back up the road not to tell nobody where I am going.” He attempted to assault the two women with a fire-poker and they disarmed him, and his question in referеnce to what time Nora Peoples came home and on being told saying “both of us was telling a lie.”

Nora Peoples leaving the house with defendant pursuing her with a hammer, which he had at the time; his striking Jemima in the head when she was turning around and continuing to hit her with the hammer in the head after she had fаllen, until she was dead, and his expressions at the time were sufficient to be submitted to the jury on premеditation and deliberation.

J. S. Phillips, sheriff of Guilford County, testified that he was at the scene of the killing immediately after, about 4 o’clock. That he at once commenced a search for dеfendant, with 10 or 15 officers, “scoured the whole community. . . . There were a number of colored people helped us as well as white, about 25 or 30, I expect, all told. Q. Did you know how far up аnd down the railroad track you looked, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Mr. Phillips? (Objection by the defendant for that it is immaterial). The Court: I think it is competent in determining premeditation, and it is competent to show malice. Answer: We lоoked not only on the railroad, but the whole surroundings there, and some of the colored pеople came to our assistance, and they went and looked for him.” Exception and assignment of error by defendant was made to the above.

*195 In S. v. Stewart, 189 N. C., 340 (347), is the following: “Flight, it is true, is not in itself an admission of guilt; but, whеn established, it is a fact which, together with a series of other circumstances, may be associated with the fact in issue as, in the relation of cause and effect, to lead to a satisfactory conclusion. Considered in its proper setting and in its relation to other parts of the charge, the instruction complained of, as we understand it, imports only this — that the jury might consider evidenсe of flight in connection with other circumstances in passing upon the question whether the combined circumstances were tantamount to an implied admission of guilt, and not that flight per se constitutes such аn admission or raises a presumption of guilt. When so considered, the instruction is in accord with the authorities in this jurisdiction. S. v. Tate, 161 N. C., 280; S. v. Hairston, 182 N. C., 851. His Honor took care to say that neither flight nor attempted conceаlment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍created a presumption of premeditation and deliberation. S. v. Foster, 130 N. C., 666.” S. v. Steele, 190 N. C., 506 (511). Flight is a circumstance to be submitted to the jury. S. v. Lawrence, 196 N. C., 562 (577); S. v. Bittings, supra (803); S. v. Beard, 207 N. C., 673. Flight is subject to explanation. S. v. Mull, 196 N. C., 351.

This Court has said in several cases, including the above cases, that flight is not еvidence of premeditation and deliberation. S. v. Collins, 189 N. C., 15 (20).

The able, painstaking, and learned judge in the court below tried the case with unusual care. The charge covered every aspect of the controversy, and the law applicable to the facts was fully ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍given. This is all so, but we think, under the authorities, that flight is no evidence of premeditation and deliberation. What was said by the court below was prejudicial and reversible error.

Eor the reasons given, there must be a

New trial.