A рainstaking scrutiny of the record, and a careful consideration of the questions presented in brief of counsel for defendant fail to disclose prejudicial error.
The first exception relates to the аdmission in evidence of photographs identified as having been taken at one o’clock on the morning of 14 December at the scene where the body of deceased was found, one the “way it was when wе got there” — and the other after he was turned over “to get a facial picture of him to see if he could be definitely identified.”
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Tbe seventh exception is directed to the action of the solicitor in showing the photographs to the jury during his argument. The record shows that when these photographs were admitted in evidеnce the court instructed the jury that they were not offered as substantive evidence, but only for the purpоse of illustrating the testimony of the witness, if the jury should find that they do illustrate it. Then, again, in his charge the court repeаted the instruction, and further expressly charged that the jury should not consider them as substantive evidence as “tending to prove any of the main facts at issue.” For the purpose for which the photographs were offered and received in evidence, they are competent. The record fails to show that the solicitor used them for any other purpose. Hence, their admission in evidence for the purpose stated is in accord with well settled rule of law in this State.
Pickett v. R. R.,
Defendant next contends that the court erred in limiting the jury to thе rendition of one of two verdicts, “Guilty of murder in the first degree” or “Not G-uilty.” Exceptions 8 and 9.
It is provided in 0. S., 4200, that “A murder . . . which shall he committed in the perpetration, or attempt to perpetrate any . . . robbery, ... or other felony, shall be deemed to be murder in the first degree and shall be punished by death.” Speaking thereto in the cаse of
S. v. Spivey,
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In tbе present case, if tbe evidence for tbe State is to be believed, tbe defendant, in tbe perpetration of, or in an attempt to perpetrate a robbery of C. C. Ritter, sbot and killed bim. Tbe homicide so сommitted is murder in tbe first degree. C. S., 4200;
S. v. Logan,
If, on tbe other band, tbe testimony of tbe defendant, as witness in bis own behalf, is to be believed, tbe killing of C. 0. Ritter was done by John Henry Thomas, while be and defendant, as co-conspirators in a preсonceived plan to rob C. C. Ritter, were perpetrating or attempting to perpetrate a rоbbery of bim. This too made tbe homicide murder in tbe first degree, and both of them would be guilty.
S. v. Bell,
There is no evidence of a lesser degree of homicide.
S. v. Spivey, supra; S. v. Myers,
Hence, there is no error in limiting tbe jury to one of two verdicts, murder in tbe first degree or not guilty. S. v. Donnell, supra; S. v. Satterfield, supra.
Defendant further complains that in addition to chаrging tbe jury on tbe subject of homicide committed while in tbe perpetration, or attempt to perpetrate a robbery, tbe court went further and charged on tbe subject of “a willful, deliberate and premeditated killing,” and still limited tbe jury to one of two verdicts as hereinbefore stated. Even so, as was similarly stated by this Court in
S. v. Logan,
Defendant further contends that tbe court should have instructed tbe jury on tbe question as to whether defendant was mentally caрable of committing tbe crime. There is no evidence that tbe defendant was not capable of knowing and understanding what be was doing. Compare
S. v. Murphy,
There are other exceptions appearing in the record which are not brought forward in defendant’s brief and are deemed abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 213 N. 0., 808. However, we find no merit in them.
In the judgment below there is
No error.