185 N.C. 679 | N.C. | 1923
The gravity of the judgment pronounced has called for a close and careful scrutiny of the entire record, to the end that the prisoner’s exceptions be judicially determined and his legal rights fully protected.. Such inspection we have endeavored to bestow, and have been unable to discover in the trial any error that will warrant referring the ease to another jury or interfering with the judgment of the court.
The circumstances attending the homicide are free from complication. The prisoner was driving his wagon on the highway; he was overtaken, or met, by the deceased and charged with larceny; the deceased got in the wagon and took a seat on the left side of the prisoner; an “argument” followed and the prisoner fired four shots in rapid succession, killing the deceased, whose body soon thereafter was found in the road. No novel question is presented and no extended discussion is. required.
Exceptions 1, 4, 5: The prisoner’s objection to evidence tending to show the contents of the wagon-bed — hay, whiskey, and a little corn — is without merit. When the deceased and Arthur Sutton overtook, or met, the prisoner the deceased displaced a part of the hay and found corn which he said had been stolen from his field. If evidence, when offered, is competent for any purpose it should not be excluded; and here the evidence objected to was competent, not only on the question of the prisoner’s motive in firing the fatal shots, but on the question of his premeditation and deliberation. It tended to disclose conditions, all of which were known to the prisoner, and some of which were known to-the deceased during the time that intervened between their meeting and the commission of the homicide. S. v. Goff, 117 N. C., 756; S. v. Rose, 129 N. C., 575; S. v. Wilcox, 132 N. C., 1143.
Exceptions 2, 3: Arthur Sutton testified that after going in search of the officer,.he returned to the scene of the homicide and examined the body of the deceased, not very closely, it is true, and found that he was not armed; and C. T. Savage testified that when he went there he found nothing. To the admission of these statements exceptions were entered of record.
The prisoner told the sheriff that the deceased while in the wagon assaulted him with a knife; that the deceased “had his knife and made a grab at him, and he shot him.” He did not say the deceased had a pistol. The court was alert to permit the jury to consider any evidence of an assault upon the prisoner by the deceased with a knife, and instructed them in the law both of manslaughter and of self-defense. Since the prisoner did not pretend that the deceased had a pistol, in
Exceptions 7, 8: Exception was taken to his Honor’s definition of deliberation and premeditation, which was in these words: “Deliberation means to think about, to revolve over in one’s mind; and if a person thinks about the performance of an act and determines in his mind to do that act, he has deliberated upon the act. Premeditation means to think beforehand, think over the matter beforehand; and where -a person forms a purpose to kill another and weighs this purpose in his mind long enough to form a fixed design to kill at a subsequent time, no matter how soon or how late, and pursuant to said fixed design kills said person, this would be a killing with premeditation and deliberation. ... In order to constitute deliberation and premeditation, something more must appear than the prior existence of actual malice, or the presumption of actual 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 as to satisfy the jury beyond a reasonable doubt that the person had weighed and balanced the subject of killing in his mind long enough to consider the reason or the motive that impelled him to act, as to form a fixed design to kill in furtherance of such purpose or motive.”
These exceptions are based on the proposition that the court did not specifically instruct the jury that in order to convict the prisoner of murder in the first degree they must find the homicide to have been the direct consequence of premeditation and deliberation. The misconcepr tion is in failing to distinguish between a definition of the words “premeditation and deliberation” and facts that are necessary to constitute murder in' the first degree. Here.his Honor was merely defining these terms, and in another part of his charge he gave the following instruction as to murder in the first degree: “Now the burden of proof is upon the State — that is, before you can return a verdict of “Guilty of murder in the first degree,” you will have tojfind from thé evidence and beyond a-reasonable doubt that the prisoner killed the deceased not only with malice, but premeditation and deliberation, and. the court charges you that if you should find beyond a reasonable doubt that prior to the time
The exceptions must be overruled. S. v. Spivey, 132 N. C., 989; S. v. Daniel, 139 N. C., 549; S. v. Hunt, 134 N. C., 684; S. v. Norwood, 115 N. C., 790; S. v. McCormac, 116 N. C., 1033; S. v. Covington, 117 N. C., 834.
Exception 9 is addressed to the instruction as to the law of manslaughter, the particular impeachment being that the court did not apply the law to the evidence. The definition of the word “malice” was given in connection with the explanation of the several degrees of felonious homicide, and the contentions of the State and of the prisoner were reviewed by the court. After stating the prisoner’s position with respect to the alleged assault by the deceased with a knife, and after telling the jury that if the prisoner did the killing without malice, but not in self-defense, he would be guilty only of manslaughter, his Honor gave the additional instruction that if the prisoner committed the homicide by reason of anger suddenly aroused, the crime would be nothing more than manslaughter. Of the latter instruction the prisoner assuredly has no just cause to complain. If, as now suggested, he desired that the laAv should be particularly applied to any special phase of the evidence, it was incumbent upon him to make the request by special prayers for instructions. S. v. Merrick, 171 N. C., 795; S. v. Thomas, 184 N. C., 757.
Exception 11: In S. v. Fowler, 151 N. C., 732, Brown, J., said: “An unlawful killing is manslaughter, and when there is the added element of malice it is murder in the second degree. When the defendant takes up the laboring oar he must rebut both presumptions — the presumption that the killing was unlawful and the presumption that it was done with malice. If he stops when he has rebutted the presumption of malice, the presumption that the killing was unlawful still stands, and unless rebutted the defendant is guilty of manslaughter. This is a fair deduction from the cases in this State. S. v. Hagan, 131 N. C., 802; S. v. Brittain, 89 N. C., 501, 502.” And in S. v. Lane, 166 N. C., 333, it was held that the burden is on the prisoner to establish circumstances in excuse or mitigation to the satisfaction of the jury unless they arise out of the evidence against him. See, also, S. v. Brinkley, 183 N. C., 720, and S. v. Johnson, 184 N. C., 637. The presiding judge charged' the jury in accordance with these decisions, but it is argued for the prisoner that the jury -may have inferred that he was not entitled to the benefit of the instruction because he had offered no evidence; but this
Exceptions 12, 13: the prisoner excepted also to the manner in wbicb the court stated certain of the prisoner’s contentions, but tbis exception is not now available, for the reason tbat sueb objection cannot first be made after the verdict, is returned. Phifer v. Comrs., 157 N. C., 150; S. v. Tyson, 133 N. C., 692; S. v. Davis, 134 N. C., 633; S. v. Kincaid, 183 N. C., 709.
Exceptions 14, 15: At tbe request of tbe local authorities and by permission of tbe Governor, a detachment of the State militia were in tbe courtroom when tbe verdict was returned. There is no suggestion tbat tbe jury knew they were there before tbis time, and so far as tbe record discloses there is not a reasonable probability tbat their presence could have influenced tbe verdict in any respect. If there bad been we are assured tbat tbe cautious and discerning judge who presided at tbe trial would have given tbe matter careful thought when considering tbe prisoner’s motion for a new trial.
A critical review of tbe record does not disclose reversible error.
No error.