State v. . Mays
35 S.E.2d 494
N.C.
1945
Check Treatment
Barnhill, J.

Dr. J. E. Foster examined the body of the deceased and being asked his opinion as to the cause of death he replied, “My opinion is that she died from suffocation from the dress being crammed over her air passages.” Foundation was laid for the question which elicited this response.

Expert testimony as to the cause of the death was competent. Frequently it is the only available means of proving that fact. The question was proper and there was no objection to the answer or motion to strike the part thereof which undertook to give the means used. Defendant waived any grounds for objection to so much of the answer as may not be responsive to the question. S. v. Lefevers, 216 N. C., 494, 5 S. E. (2d), 55; S. v. Hudson, 218 N. C., 219, 10 S. E. (2d), 730; S. v. Gooding, 196 N. C., 710, 146 S. E., 806; Luttrell v. Hardin, 193 N. C., 266, 136 S. E., 726.

The confession was prima facie voluntary and admissible in evidence. S. v. Grass, 223 N. C., 31, 25 S. E. (2d), 193; S. v. Wagstaff, 219 N. C., 15, 12 S. E. (2d), 657. No fact or circumstance tending to impeach its voluntariness is made to appear. S. v. Grass, supra; S. v. Exum, 213 N. C., 16, 195 S. E., 7; S. v. Wagstaff, supra.

Photographs to illustrate the testimony of witnesses respecting wounds found on her body were competent. Being admitted, it was not improper to permit the jury to see them. Otherwise they would neither illustrate nor explain. S. v. Shepherd, 220 N. C., 377, 17 S. E. (2d), 469; S. v. Miller, 219 N. C., 514, 14 S. E. (2d), 522; S. v. Holland, 216 N. C., 610, 6 S. E. (2d), 217; S. v. Jones, 175 N. C., 709, 95 S. E., 576. See also Janovich v. S., 256 Pac., 359, where the facts were similar.

Exception for that the court admitted testimony as to the similarity of the footprints of defendant and certain prints found at and about the *489 premises cannot be sustained. The condition of the prints only goes to the weight of the evidence. S. v. Lowry, 170 N. C., 730, 87 S. E., 62; S. v. McLeod, 198 N. C., 649, 152 S. E., 895.

It was likewise permissible for the State to offer in evidence a cast or moulage of such footprints. This is just another way of recording, portraying or “photographing” the appearance, shape, form and contour of this particular type of object. Haley v. State, 84 Tex. Cr. App., 629, 209 S. W., 675; S. v. Simons, 172 Wash., 438, 20 Pac. (2d), 844.

“A murder . . . which shall be committed in the perpetration or attempt to perpetrate any . . . rape . . . shall be deemed to be murder in the first degree . . .” G. S., 14-17. When a homicide is committed in the perpetration of the capital felony of rape the State is not put to proof of premeditation and deliberation. Proof that the homicide was committed in the perpetration or attempted perpetration of the felony of rape is all that is required. S. v. Dunheen, 224 N. C., 738.

There is abundant evidence in the record tending to establish this fact. The evidence tends to point to the defendant as the one who committed the offense. No element of murder in the second degree or manslaughter is made to appear. Hence the court properly limited the possible verdicts to guilty of murder in the first degree or not guilty. S. v. Miller, supra; S. v. Myers, 202 N. C., 351, 162 S. E., 764; S. v. Donnell, 202 N. C., 782, 164 S. E., 352; S. v. Satterfield, 207 N. C., 118, 176 S. E., 466; S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Wiggins, 171 N. C., 813, 89 S. E., 58.

The bill of indictment charges the capital felony of murder in the language prescribed by statute. G. S., 15-144. It contains every averment necessary to be made. S. v. Arnold, 107 N. C., 861; S. v. R. R., 125 N. C., 666. Proof that the murder was committed in the perpetration of a felony constitutes no variance between allegata and probata. S. v. Fogleman, 204 N. C., 401, 168 S. E., 536. If the defendant desired more definite information he had the right to request a bill of particulars, in the absence of which he has no cause to complain.

Whether the evidence offered on the plea of insanity was sufficient to be submitted to the jury we need not decide. The court below submitted it to the jury for their consideration under a charge that is free from error. This was all that the defendant could demand.

In this connection we may note that the mental capacity of the defendant to deliberate and premeditate is not at issue. If he possessed sufficient sanity to enable him to commit the crime of rape then he is legally responsible for the homicide that resulted.

*490 Tie other exceptive assignments of error iave received consideration commensurate with, tie gravity of tie case. Tiey fail to disclose any cause for disturbing tie verdict.

In tie trial below we find

No error.