State v. . Dowden

Avery, J.: Counsel for the prisoner contended that the charge of the court came within the condemnation of the ruling in State v. Fuller, 114 N. C., 885, in that the definition of murder in the first degree was left in doubt and uncertainty, and the jury were liable to be misled by inconsistent'pi’opositions of law contained in different portions of it. It is probable that the instruction would have been more clearly understood by the jury had the judge told them, in the outset, that the killing, (which, according to all of the testimony, was done with a deadly weapon,) being proved or admitted, the law presumed malice, and the burden is shifted upon the prisoner to show that he was not guilty of murder in the second degree. The instruction that the burden shifted upon the prisoner to rebut the presumption that he was guilty of murder, without specifying the grade, is not to be commended as a formula, and, without the clear explanation subsequently given, would have been misleading. The distinction between the instruction excepted to in this case and that held to be erroneous in Fuller's case can be easily drawn and readily comprehended. In Fuller’s case the trial judge told the jury that where the fact of killing with a deadly weapon was proved, or admitted, premeditation might “ be presumed from the use of the deadly weapon unless the contrary appeared.” Other instruction given was in conflict with that proposition, and the jury were left to act upon either of two irreconcilably antagonistic views of the law, one of which might have misled them into returning a verdict of murder in the first degree, when the facts found *1151 by them warranted only a verdict of murder in the second decree, while the other proposition submitted by the court, if acted upon, would have led them to a just conclusion. The prisoner was entitled to a new trial, because it was manifest that the jury might have found him guilty of'the higher crime, solely because they were misled as to the law. In the case before us the judge told the jury that the burden shifted, upon proof of killing with a deadly weapon, as to the question whether the homicide was murder or was mitigated to manslaughter, or was only a justifiable or excusable slaying. Subsequently, however, and after defining manslaughter, the judge stated that there were two degrees of murder, and explained the distinction between the two as follows: “ The crime of murder has been graded by the law of this State into murder in the first degree and murder in the second degree. “ Every murder which is committed by lying in wait or poisoning or by torture, or any other kind of willful, deliberate and premeditated murder, or any murder committed in the attempt to commit a felony or in the perpetration of a felony, is deemed to be a murder in the first degree. All other kinds of murder are in the second degree. You will understand that it is an essential ingredient of the crime of murder in the first degree that the killing must be done with deliberation and premeditation. When there is no premeditation in the commission of the murder, for that very reason it is murder in the second degree. What does the law mean by the word premeditation ? The word premeditate means to think beforehand — as where a man thinks about the commission of an act and concludes or determines in his mind to commit the act; he has thus premeditated the commission of the act. The law does not lay down any rule as to the time which must elapse *1152 between,tbe moment when a person premeditates, or comes to the determination in his own mind to kill another person, and the moment when he does the killing, as a test. It is not a question of time. It is merely a question of whether the accused formed in his own mind the determination to kill the deceased, and then at some subsequent period, either immediate or remote, does carry his previously formed determination into effect by killing the deceased. If there be an intent to kill and a simultaneous killing, then there is 'no premeditation. In determining this question of deliberation and premeditation, it is competent for the jury to take into their consideration the conduct of the prisoner, before and after as well as at the time of the homicide, and all the circumstances connected with the homicide. “ It is for the jury, and not the court, to decide what is the degree of murder in all cases where the jury have come to the conclusion that the case under consideration is one of murder. Our Act of Assembly grading the crime of murder also makes it the duty of the jury which tries and sits upon the case to determine, if it be a case of murder, whether it be murder in the first or second degree. “ The court also instructs you that when the State Contends for and asks at your hands for a verdict of guilty of murder in the first degree, as the State does in this case, the law makes it incumbent upon the State to satisfy the jury beyond a reasonable doubt that this is a case not only of murder but of murder in the first degree.” The first part of the charge left the question of what was included under the term £‘ murder ” an open one, and if that and the latter portion of it had been given, one immediately after the other, there would have been no inconsistency between them. The killing with a deadly weapon did raise a presumption that the homicide was *1153 murder — but in the second degree. The specific instruction subsequently left no room for doubt in the mind of an intelligent juror that it was incumbent on the State to prove premeditation and deliberation, and that on the failure to do so the prisoner could be.found guilty of no higher offence than murder in the second degree. If the prisoner weighed the purpose of killing long enough to form a fixed design to kill, and at a subsequent time, no matter how soon or how remote, put it into execution, there was sufficient premeditation and deliberation to warrant the jury in finding him guilty of murder in the first degree. State v. Thomas, at this Term; State v. Norwood, 115 N. C., 790; State v. Covington, 117 N. C., 834; State v. McCormac, 116 N. C., 1033. This Court has not followed the intimations of some of the courts of other states that, in order to constitute deliberation, there must be evidence of a definite design formed on some occasion previous to the meeting at which the killing was done, and cherished up to and at the time of putting it into execution. The court properly told the jury, that where the intent to kill was formed simultaneously with the act of killing the homicide was not murder in the first degree. This was but another mode of expressing the rule that there must be a preconceived and definite purpose to kill, the question of the time that elapses between the determination to kill and the killing being immaterial. There was no error, and the judgment is affirmed. Affirmed.