State v. Lipscomb., 134 N.C. 689

WaleeR, J.,

after stating the case. There was no exception taken to the charge so far as it related to murder in the first degree. In this respect the instructions of the Court to the jury were full and explicit and sustained by all of the authorities. State v. Gilchrist, 113 N. C., 673; State v. Fuller, 114 N. C., 885; State v. Norwood, 115 N. C., 789; 44 Am. St. Rep., 498; State v. McCormac, 116 N. C., 1033; State v. Gadberry, 117 N. C., 811; State v. Govington, 117 N. C., 834; State v. Thomas, 118 N. C., 1113; State v. Dowden, 118 N. C., 1145; State v. Rhyne, 124 N. C., 847; State v. Spivey, 132 N. C., 989; State v. Cole, 132 N. C., 1069. There was ample time for deliberation and premeditation by tbe defendant according to any rule that has been laid down upon tbe subject. No particular time is required for tbis mental process of premeditation and deliberation. Tbe question always is whether, under all tbe facts and circumstances of tbe case, tbe defendant bad previously and deliberately formed tbe particular and definite intent to kill, and then and there carried it into effect. Tbis is a question for the jury to determine. State v. Johnson, 47 N. C., 247, 64 Am. Dec., 582. The facts of our case are substantially like those in State v. McCormac, 116 N. C., at page 1034.

Tbe testimony of tbe witness W. P. Wheeler, as to tbe confession made to him by the defendant, was sufficient in itself to warrant tbe jury in finding tbe fact of premeditation and deliberation, if they believed it, and, if after weighing tbe testimony, they inferred and found tbe fact therefrom; but tbis testimony was reinforced by that of tbe defendant himself at tbe trial, which tended to show, not only premeditation and deliberation at tbe time of tbe killing, but preconceived malice and a spirit of revenge.

Tbe exception to tbe charge of the Court is not well taken. There is no principle better settled in tbe law of homicide than tbe one stated by the Court to tbe jury. When a killing with a deadly weapon is shown or admitted tbe law presumes malice, and, if nothing else appears, it is murder in tbe second degree, just as it would have been murder at common law, and would still be, if it were not for tbe Act of 1893 requiring tbe State to prove premeditation and deliberation in order to establish a case of murder in tbe first degree, and in tbis respect leaving murder in tbe second degree, as defined by that statute, just as was mur der at the common law. If there is no proof of premeditation and deliberation, and there is a killing with a deadly weapon, the law presumes malice and it is murder in the second degree under the statute. State v. Wilcox, 118 N. C., 1131; State v. Capps, 134 N. C., 622.

This being so, the conviction should be of murder in the second degree, unless the defendant can satisfy the jury of the existence of such facts as will in law rebut this presumption of malice which is raised when the killing is with a deadly weapon. What facts are sufficient to rebut the presumption has always been held to be a question of law which the Court must decide. Whether there is any evidence to rebut the presumption is also a question of law. Whether if there is any evidence sufficient for the purpose, the presumpion is repelled in the particular case, is a question for the jury, under proper instructions from the Court. State v. Matthews, 78 N. C., 523; State v. Capps, supra; State v. Craton, 28 N. C., 164.

To illustrate: If A assault B, giving him a severe blow or otherwise making the provocation great, and B strikes A with a deadly weapon and kills him, or if, on a sudden quarrel, the parties begin the fight without deadly weapons, and, after blows pass, one uses a deadly weapon and kills the other, or if, on a sudden quarrel, the parties fight by mutual consent, at the instant, with deadly weapons, the fight being on equal terms and no undue advantage being taken, the implication of malice in either of the cases stated is rebutted and the law mitigates the offense out of indulgence to the frailty of human nature and adjudges the killing to be manslaughter, State v. Ellick, 60 N. C., 452, 86 Am. Dec., 442; and, if the first assault is committed under such circumstances as to induce the party assaulted reasonably to believe that he is about to be killed or to receive enormous bodily harm and he kills his adversary, the law excuses the killing', because any man, wbo is not himself legally in fault, bas tbe right to save his own life or to prevent enormous bodily harm to himself. In each of the above cases, it would be the duty of the Court to charge the jury that if they found the facts to be as we have stated them, provided there is evidence to prove the facts, the implication of malice is rebutted and the killing is either manslaughter or excusable homicide, according as the facts may be found by them. Whether the blow was given, or* whether the parties fought suddenly or on fair and equal terms, so as to reduce the killing to manslaughter, or whether the assault was committed under such circumstances as to justify the fear or apprehension of the defendant that he was about to be killed or to receive enormous bodily harm, so as to reduce the killing to excusable homicide, .are questions solely for the jury. The matter is fully considered in the ease of State v. Matthews, supra. It was therefore proper for the Court to charge the jury in this case that there was no evidence of any facts and circumstances sufficient to rebut the presumption of malice which arose from the killing with the gun, which of course is.a deadly weapon, and the defendant was at least guilty of murder in the second degree. There was no evidence of any provocation, nor was there evidence of any fact which could be considered in mitigation, excuse or justification of the killing. The only question in the case was whether the'defendant was guilty of murder in the first degree or of murder in the second degree, the killing having been admitted.

But if there had been error in the instruction to which exception was taken, we do not see how the defendant could have been prejudiced thereby, for the jury found that he killed his victim intentionally and wilfully and with premeditation and deliberation, and it could make no difference, with that fact found by the jury from the evidence, whether tlie presumption of the common law as to malice arising from the use of a deadly weapon had been rebutted or not. Prejudice could not come from such a charge, if erroneous, unless the defendant had been convicted of murder in the second degree and there had been evidence of facts or circumstances in mitigation or excuse of the killing. We have said there was none. The principle contained in the instruction of the Court had no application to the difference between murder in the first degree and murder in the second degree. It related only to the difference between murder in the second degree and manslaughter or excusable or justifiable homicide.

The motion to set aside the verdict because one of the jurors was under twenty-one years of age wras properly refused, or at least the refusal of it was not reversible error. The challenge propter defectum should be made when the juror comes to the book to be sworn and before he is sworn, or the right of challenge will be deemied to be waived. No juror can be challenged by the defendant after he has been selected and sworn without the consent of the State, unless it be for some cause which has arisen since he was chosen and sworn. State v. Patrick, 48 N. C., 443; State v. Davis, 80 N. C., 412. In State v. Lambert, 93 N. C., 618, a motion to set aside a verdict for a reason the same as the one now urged was held to have been properly refused. As indicated by this Court in Patrick’s case, supra, there is an apt time for each and every step in all legal proceedings, and every objection must be made and every privilege claimed at the proper time, or the party who should thus have asserted his right will be considered as having waived it. The objection to the juror in this case was not presented in apt time. State v. Parker, 132 N. C., 1014. It came too late after verdict, and could then be addressed only to the discretion of the Court. State v. Maultsby, 130 N. C., 664, and cases supra. The exercise of this discretion adversely to the defendant is not reviewable by this Court. State v. Davis, supra; State v. Perkins, 66 N. C., 126; Spicer v. Fulghum, 67 N. C., 18.

The indictment in this case, though drawn according to the precedent in use before the Act of 1893, is in proper form and charges the offense of murder in the first degree. State v. Gilchrist, supra.

We have considered the case and the record with the greatest care and scrutiny, and our conclusion is that there is no error in the rulings of the Court below and none in the record, and it must be so certified.

No Error.

Case Details

Case Name: State v. Lipscomb.

Court Name: Supreme Court of North Carolina

Date Published: Apr 5, 1904

Citations: 134 N.C. 689; 47 S.E. 44; 1904 N.C. LEXIS 148

Court Abbreviation: N.C.