There is evidence on behalf of the State tending to show that on the night of 25 July, 1926, the prisoner, Ernest P. Walker, a colored man, burglariously entered a dwelling-house in the city of Durham, in the night time, with intent to stеal the goods and chattels of another then being in said dwelling-house, ravished Louie Cassidy, a colored woman, one of the occupants therein, murdered her husband, Joseph Cassidy, аlso an occupant of the house, by striking him three times on- the head with an axe, successfully made his escape, and was arrested at his home three or four days thereafter. The murder, for which alone the prisoner has been tried and convicted, was committed in the perpetration of rape, robbery, and burglary. The charge is not denied; in fact, the
corpus delicti,
with all of its аttendant atrociousness, is admitted. The defense interposed by the prisoner amounts to a plea of insanity, alleged to have been aggravated by intoxication or drunkenness at the time. The evidence tending to support this plea was properly submitted to the jury, and wаs rejected or found to be unsatisfactory.
S. v. Campbell,
It is well settled, by a long line of decisions, that, in this jurisdictiоn, as well as in many others, in a criminal prosecution, where insanity is interposed as a defеnse, the burden of proof is on the defendant, who sets it up, to prove such insanity, not beyond a reasonable doubt, but to the satisfaction of the jury.
S. v. Jones,
The only questions presented by the defendant’s appeal relate to the correctness of certain instructions contаined in the court’s charge to the *491 jury, and to the refusal of his Honor to give, without modification, аs requested, two of the prisoner’s prayers for special instructions.
The first exceptiоn is directed to the following portion of the charge:
“Now, before you can conviсt the defendant of murder in the first degree, you must be satisfied beyond a reasonable doubt (and the burden is on the State to satisfy you that the killing was either done in premeditation and deliberation, or was done in the commission, or attempt to commit, some other felony, burglary, rapе, or arson).”
The prisoner excepts and assigns as error only that part of the instruction in parenthesis. If the part to which the prisoner excepts contained all that the judge said in regard to the burden of proof, which it does not, clearly the instruction would be erroneоus, for, in every criminal prosecution, the prisoner’s plea of traverse casts upon the State the burden of establishing his guilt beyond a reasonable doubt before a verdict cаn be rendered against him.
S. v. Tucker,
By correct interpretation, we think the court, in the above instruction, meant to say, and, when read in the light of the whole charge, did say, that before the prisoner could be convicted of murder in the first degree, the burden was on the State to satisfy the jury beyond a reasonable doubt of every element neсessary to constitute an unlawful killing with malice and with premeditation and deliberation, or a murdеr committed in the perpetration, or attempt to perpetrate, some other felony, such as arson, rape, or burglary. As thus understood, the instruction is in keeping with the language оf the statute, C. S., 4200, and accords with the pertinent decisions on the subject. Hence, the prisoner has no valid ground for complaint, so far as this instruction is concerned.
S. v. Steele,
The court also instructed the jury, to which exception is taken, that when a killing with a deadly weapon is admitted оr established by the evidence, the law raises two presumptions against the slayer: first, that the killing was unlawful, and, second, that it was done with malice, and that an unlawful killing with malice is murder in the second dеgree. This instruction is" free from error.
S. v. Benson, supra; S. v. Fowler,
*492
The spеcial instructions, relative to the prisoner’s alleged intoxication, or voluntary drunkenness, wеre properly modified so as to conform to the law as declared in
S. v. Ross, ante,
25;
S. v. Allen,
A careful scrutiny of the record convinces us that the prisoner has had a fair and impartial trial — one entirely free from reversible error or valid criticism.
The verdict and judgment must be upheld.
No error.