State v. . Keaton

Stacy, C. J. This is the same case that was before us at the last term, opinion filed 10 January, 1934, and reported in 205 N. C., 607. A new trial was granted on the first appeal for error in the exclusion of evidence. The case has been tried again with the same result as on the first trial, to wit, a capital verdict and sentence of death. The prisoner now complains that the trial court failed to instruct the jury on the issue of manslaughter and limited them in their deliberations to one of three verdicts, to wit: murder in the first degree, murder in the second degree, and not guilty. S. v. Merrick, 171 N. C., 788, 88 S. E., 501. The rule undoubtedly is, that when it is permissible under the bill, as here, to convict the defendant of .“a less degree of the same crime,” C. S., 4640, and there is evidence tending to support a milder verdict, the case presents a situation where the defendant is entitled to have the different views presented to the jury under a proper charge, and an error in this respect is not cured by a verdict convicting the defendant of a higher offense charged in the bill of indictment, for in such event, it cannot be known whether the jury would have convicted of a less degree of the same crime if the different views, arising on the evidence, *685 bad been correctly presented in tbe court’s charge. S. v. Lee, ante, 472, 174 S. E., 288; S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Lutterloh, 188 N. C., 412, 124 S. E., 752; S. v. Robinson, 188 N. C., 784, 125 S. E., 617; S. v. Williams, 185 N. C., 685, 116 S. E., 736. But the facts of the instant case do not call for the application of this rule, so far as the issue of manslaughter is concerned, as the record is barren of any evidence of manslaughter. S. v. Myers, 202 N. C., 351, 162 S. E., 764; S. v. Sterling, 200 N. C., 18, 156 S. E., 96; S. v. Newsome, supra; S. v. Spivey, 151 N. C., 676, 65 S. E., 995. The homicide was intentional and it was committed with a deadly weapon under circumstances which suggest no cause, excuse, or justification. This is, at least, murder in the second degree. S. v. Bailey, 205 N. C., 255, 171 S. E., 81; S. v. Robinson, supra. There are three degrees of an unlawful homicide: (1) murder in the first degree, which is the unlawful killing of a human being with malice and with premeditation and deliberation; (2) murder in the second degree, which is the unlawful killing of a human being with malice, but without premeditation and deliberation; and (3) manslaughter, which is the unlawful killing of a human being without malice and without premeditation and deliberation. S. v. Benson, 183 N. C., 795, 111 S. E., 869. The presence in the one case of premeditation and deliberation and the absence in the other of one or both of these elements is the distinguishing difference between murder in the first degree and murder in the second degree. S. v. Miller, 197 N. C., 445, 149 S. E., 590. The presence in the one case and the absence in the other of the element of malice is the distinguishing difference between murder in the second degree and manslaughter. S. v. Robinson, supra. An unlawful killing is manslaughter. An unlawful killing with malice is murder in the second degree. An unlawful killing with malice and with premeditation and deliberation is murder in the first degree. S. v. Banks, 143 N. C., 652, 57 S. E., 174. Where it is admitted or established by the evidence, as it is here, that the defendant intentionally killed the deceased with a deadly weapon, the law raises two — and only two — presumptions against him: first, that the killing was unlawful; second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. S. v. Bailey, supra; S. v. Miller, supra; S. v. Walker, 193 N. C., 489, 137 S. E., 429; S. v. Fowler, 151 N. C., 731, 66 S. E., 567. The additional elements of premeditation and deliberation, necessary to constitute the capital offense, are not presumed from a killing with a deadly weapon. These must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree *686 can be rendered against tbe defendant. S. v. Thomas, 118 N. C., 1113, 24 S. E., 431. It is provided by C. S., 4200, that a murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other félony, shall be deemed to be murder in the first degree, punishable by death, and all other kinds of murder shall be deemed murder in the second degree, punishable by imprisonment in the State’s prison. S. v. Banks,, 143 N. C., 652, 57 S. E., 174; S. v. Newsome, supra. If a defendant who has intentionally killed another with a deadly weapon would rebut the presumption arising from such showing or admission, he must establish to the satisfaction of the jury (S. v. Willis, 63 N. C., 26), the legal provocation which will take from the crime the element of malice and thus reduce it to manslaughter, or which will excuse it altogether on the ground of self-defense, unavoidable accident or misadventure. S. v. Gregory, 203 N. C., 528, 166 S. E., 387; S. v. Eldridge, 197 N. C., 626, 150 S. E., 125; S. v. Pasour, 183 N. C., 793, 111 S. E., 779; S. v. Brinkley, 183 N. C., 720, 110 S. E., 783. In S. v. Quick, 150 N. C., 820, 64 S. E., 168, it was said that when an intentional killing is admitted or established, the law presumes malice from the use of a deadly weapon, and the defendant is guilty of murder in the second degree, unless 'he can satisfy the jury of the truth of facts which justify his act or mitigate it to manslaughter. “The burden is on the defendant to establish such facts to the satisfaction of the jury, unless they arise out of the evidence against him.” S. v. Banks, 204 N. C., 233, 167 S. E., 851; S. v. Cox, 153 N. C., 638, 69 S. E., 419. In the instant case, there is no evidence of mitigation or provocation sufficient to reduce the offense to manslaughter. S. v. Robinson, supra. Hence, it was proper to withhold this issue from the jury’s consideration. S . v. Ferrell, 205 N. C., 640; S. v. Jackson, 199 N. C., 321, 154 S. E., 402. The remaining exceptions have been carefully considered and found wanting in sufficiency to warrant a new trial. Indeed, with the defendant’s plea of insanity rejected by the jury, there is little he could hope to accomplish, even if granted another hearing. The verdict and judgment will be upheld. No error.