State v. . Wilkins
73 S.E. 992
N.C.
1912
Check Treatment
*606 "Walker, J".

There is but one exception in this case that calls for any discussion, as we will presently show. The prisoner objected to the testimony of the witness, Rhoda Ann Westray, the mother of the deceased, as to whether the prisoner and his wife had lived together peaceably and as to any quarrels between them that she had seen. She answered that they did not live “good together,” and that they had quarreled two Sundays before the homicide was committed, when the prisoner drove his wife from his home, threatening to cut her with his knife and attempting to draw his pistol. Except the admission of the defendant, which was made in contradiction of a previous statement by him as to the manner of the killing, there was no direct or positive proof of his guilt, but the evidence was circumstantial, there being no eye-witness to the tragedy. The circumstances tending to show that the prisoner had killed his wife were very strong, apart from his admission of the fact, and the State was compelled to rely upon the circumstances to show that he had murdered her deliberately and with premeditation. In this state of the proof, we fail to see why it was not competent and relevant to prove the relations between the parties, and especially that they had quarreled, 'the husband appearing to be the aggressor, and that he had even gone so far as to threaten her life, and had attempted to use his knife and draw his pistol. These facts, especially in connection with proof of the other circumstances, tended to show his malice towards her, and to assign a motive for the killing. But we think it has been expressly decided by this Court that such evidence is competent and is also relevant to the issue.

In S. v. Rash, 34 N. C., 382, similar evidence was offered against the defendant in that case, that is, to show ill-treatment of his wife by him, the charge being that he had murdered her. It was held that the evidence was competent, not only to identify the husband as therslayer of his wife, but to show his malice towards her. Judge Nash, delivering the opinion of the Court, said: “The first inquiry would be, who could be the perpetrator? and the mind would naturally turn upon the person who, either from interest or malice, might desire her death. Interest, in this case, could not exist, and malice alone could lead to the *607 deed. Ordinarily, the eye of suspicion cannot turn upon tbe husband as the murderer of his wife, and when charged upon him, in the absence of positive proof, strong and convincing evidence — evidence that leaves no doubt in 'the mind that he had toward her that mala mens which alone could lead him to perpetrate the crime — is always material. How else could this be done than by showing his acts toward her, the manner in which he treated her, and the declarations of his malignity?”

He then proceeds to show that no stronger proof of malice could be offered than the husband’s brutal treatment of his wife and his suspicion that she had been unfaithful to him, his conduct evincing “a settled state of feeling inimical to her.” Underhill on Or. Evidence, secs. 323, 327; Sidberry v. State, 133 Ind., 677. In the case last cited it was held that where an indictment charges the defendant with the murder of his wife, testimony as to relations existing between them, previous to the homicide, and as to his treatment of her, is competent. It is not necessary to show a motive for committing the crime, when motive is not of its. essence, but it is relevant to prove a motive as a circumstance to identify the prisoner as the perpetrator of the crime, and to establish malice, deliberation, and premeditation. S. v. Adams, 138 N. C., 688. This exception cannot be sustained.

The other exception taken to the refusal of the court to give the instructions requested by the prisoner are- equally untenable. A perusal of the charge of the court will disclose that the learned judge who presided at the trial gave full, clear, and accurate instructions with reference to every question contained in the prayers of the prisoner, and not only responded to them directly, but he presented the ease to the jury in every possible phase, and was exceedingly fair and favorable to the prisoner in what he said. He might have charged more strongly against him and yet have been well within the law.

"We find no error in the record.

No error.