State v. . Benson

Stacy, J. Tbe prisoner has bad a fair trial. He has been convicted of murder in the first degree, and rightly so. His conduct was heartless and cruel. Tbe deceased was unusually patient, and at no time was bis manner threatening. On tbe contrary, again and again be reiterated that be was willing to pay tbe defendant for any damage be bad sustained. There was abundant evidence to support tbe verdict. His Honor charged tbe jury fully upon every aspect of tbe case, and explained clearly tbe difference between tbe three degrees of an unlawful homicide, to wit: murder in tbe first degreej murder in tbe second degree and manslaughter. Murder in tbe first degree is tbe unlawful killing of a human being with malice and with premeditation and deliberation. S. v. Thomas, 118 N. C., 1118. Premeditation means “thought of beforehand” for some length of time, however short. S. v. McClure, 166 N. C., 328. Deliberation means that the act is done in a cool state of tbe blood. It does not mean brooding over it or reflecting upon it for a week, a day, or an hour, or any other appreciable length of time, but it means an intention to kill, executed by tbe defendant in a cool state of tbe blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. S. v. Coffey, 174 N. C., 814. When we say tbe killing must be accompanied by premeditation and deliberation, it is meant that there must be a fixed purpose to kill, which precedes tbe act of killing, *799 for some time, however short, although the manner and length of time in which the purpose is formed is not very material. S. v. Walker, 173 N. C., 780. Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. S. v. Lipscomb, 134 N. C., 695; S. v. Fuller, 114 N. C., 885. Malice is not only hatred, ill-will, or spite, as it is ordinarily understood — to be sure that is malice — but it also means that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification. S. v. Banks, 143 N. C., 652. It may be shown by evidence of hatred, ill-will, or dislike, and it is implied in law from the killing with a deadly weapon; and a pistol or a gun is a deadly weapon. S. v. Lane, 166 N. C., 333. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. S. v. Baldwin, 152 N. C., 822. Manslaughter plus malice gives us murder in the second degree; and murder in the second degree plus premeditation and deliberation gives us murder in the first degree, S. v. Banks, 143 N. C., 652. When it is admitted or proven that the defendant killed the deceased with a deadly weapon, the law raises two presumptions against him: first, that the killing was unlawful; and second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. S. v. Fowler, 151 N. C., 732. The law then casts upon the defendant the burden of proving to the satisfaction of the jury — not by the greater weight of the evidence nor beyond a reasonable doubt — but simply to the satisfaction of the jury (S. v. Garland, 90 N. C., 675), the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or that will excuse it altogether upon the grounds of self-defense, accident, or misadventure. S. v. Little, 178 N. C., 722. The legal provocation which will reduce murder in the second degree to manslaughter must be more than words; as language, however abusive, neither excuses nor mitigates the killing, and the law does not recognize circumstances as a legal provocation which in themselves do not amount to an actual or threatened assault. 13 R. C. L., 795. If, however, the deceased assaulted the prisoner; that is, if he laid his hands upon him against his will, or struck him, or choked him, and the prisoner killed the deceased in the heat of passion, caused by the assault, and not from premeditation and deliberation, and not from malice, he would not be guilty of more than the crime of manslaughter. There is no error appearing on the instant record, and the judgment must be affirmed. No error.