State v. Lovelace.

AlleN, J. The exception chiefly relied on by the prisoner is to the refusal to instruct the jury that the evidence would not warrant a conviction of murder in the first degree, and in dealing with this exception we cannot consider evidence in extenuation or explanation offered by the prisoner, but are confined to the single question as to whether there is •evidence of premeditation and deliberation. In S. v. McCormac, 116 N. C., 1036, the Court says: “While premeditation and deliberation are not to be inferred as a matter of course from the want either of legal provocation or of proof of the use of provoking language, yet all such circumstances may be considered by the jury in determining whether the testimony is inconsistent with any other hypothesis than that the prisoner acted upon a deliberately formed pur *768 pose. S. v. Fuller, 114 N. C., 885. Kerr (in bis work on Homicide, sec. 72) says: 'The question wbetber there has been deliberation is not ordinarily capable of actual proof, but must be determined by the jury from the circumstances. It has been said that an act is done with deliberation, however long or short a time intervenes after the intent is formed and before it is executed, if the offender has an opportunity to recollect the offense.’ The test is involved in the question whether the accused acted under the influence of ungovernable passion, or whether there was evidence of the exercise of reason and judgment. The conduct of the accused just before or immediately after the killing would tend at least to show the state of mind at the moment of inflicting the fatal wound. In passing upon the question whether the facts in a given case are sufficient to show beyond a reasonable doubt that the killing was done with deliberation and premeditation, while sudden passion aroused by provocation that would neither excuse nor mitigate to manslaughter the killing with a deadly weapon, is sufficient, if the homicide is committed under its immediate influences, yet the want of provocation, the preparation of a weapon, proof that there was no quarreling just before the killing, may be considered by the jury, with other circumstances, in determining whether the act shall be attributed to sudden impulse or premeditated design.” S. v. Daniels, 164 N. C., 469. Applying this principle, we not only find the circumstances pointed out in the McOormac case as evidence of premeditation and deliberation, but also other corroborative circumstances. According to the evidence for the State, the prisoner has prepared a weapon, there was no quarreling, and the killing was without provocation. In addition, the prisoner admitted while testifying in his own behalf that he had not had much trouble with his wife, “except what the old folks caused”; one Wood testified that he saw the prisoner a week or two before the homicide, and he seemed to be in trouble, and upon inquiry he said if his father-in-law didn’t quit bothering with his family affairs he was going to have to go up' and kill him.” Flynn, who carried the prisoner to the home of his father-in-law on the evening of the homicide, testified, “When we started back I said, 'Did you marry one of Mr. Edwards’ daughters?’ and he said yes, and called her name, and I said, 'What’s your trouble?’ and he said his wife went to see his father, I believe, on a visit, and went down to Mr. Edwards, and got down there and then wouldn’t go back home, and he said, 'Them damned old sons of bitches was the cause of it all.’ ” After he had inflicted the mortal wound he said, “I’ve been wanting to get you a long time,” and his threats and conduct immediately following the shooting. *769 Much of this evidence for the State is contradicted, and other parts explained or discredited, but these were matters for the jury, and under all the authorities the evidence was sufficient to justify submitting to the jury the charge of murder in the first degree. The charge requiring the jury to consider the interest of the defendant and other witnesses, but if satisfied they had told the truth they could give their evidence as much weight as the evidence of other witnesses is in accordance with our precedents and not prejudicial to the prisoner. S. v. Lance, 166 N. C., 411. His Honor was stating the position of the prisoner accurately when he said that the defendant did not contend that he killed the deceased in self-defense, because the whole of his evidence tended to prove that he did not intend to kill the deceased at all, and that the pistol fired accidentally, but, however this may be, it makes no difference what the defense of the defendant was called if he had the full benefit of it before the jury, and this was accorded to him. The full charge on this phase of the case is as follows: “It is not contended by the prisoner that he killed the deceased in self-defense, but it is contended that the deceased had a brick, and that the prisoner was not in the wrong when the deceased had the brick in his hand, and that he drew his pistol to avoid an apparent assault from the deceased with the brick, and that thereafter the deceased and the wife of the prisoner and the prisoner got into a struggle over the pistol, and that the pistol accidentally fired, and that the killing was therefore unintentional and accidental, and the court charges you that' though you should •find from the evidence beyond a reasonable doubt that the deceased came to his death as the result of a shot from a pistol in the hands of the defendant, yet if you find from the evidence that the defendant, at the time he took the pistol from his pocket, believed, and had reasonable grounds to believe, that the deceased had a deadly weapon in his hand, and apprehended and had reasonable grounds to apprehend that unless hq used the pistol or made a demonstration of a purpose to use it he would suffer death or great bodily harm at the hands of the deceased, and, thereafter, in a struggle which ensued, the pistol was discharged without any intention on the part of the defendant to discharge the weapon, then the court charges you that if the defendant has satisfied you that the killing took place in this way, that it is not a felonious homicide, and you will return a verdict of not guilty.” ' This states the contention of the prisoner as he testified. It is unnecessary to consider the competency of the evidence of the witness Morris as to the disagreeable relation existing between the prisoner and his wife, because if there was error on its reception it was cured by its withdrawal and by the explicit instruction not to consider it. *770 “If juries should be deemed incompetent to comprehend, or unable to •obey, so plain a direction as that a paper read in their hearing is 'not to be considered as evidence, and that it had only been admitted to make the defendant’s reply to it (when read to him) intelligible’ — if so low ■an estimate should be j)laced upon juries, then the jury system is a failure, and should have no place in our jurisprudence.” S. v. Crane, 110 N. C., 535. The evidence offered to prove a cordial relation between the defendant and his wife was properly excluded. It could not be received on the question of the defendant’s character, because not confined to general character (S. v. Ussery, 118 N. C., 1181), and as a circumstance it was not relevant to any issue before the jury. The material inquiry was as to the feeling of the prisoner towards the deceased, which the rejected evidence would have had the tendency to intensify in the estimation of the jury, as resentment would naturally be greater against one who had caused the separation from an affectionate wife. ' We have examined the record with care and find no error, but we cannot but be impressed by the evidence, which shows very clearly that this tragedy, which has wrecked two homes, could have been easily averted if the deceased and his wife had given a little encouragement to their daughter to return to her home and her duties. No error.