This is a conviction for murder in the first degree. The evidence tended to show that the prisoner went to the home of the deceased in the morning of the day she was killed, and got some black pepper; that he went off, but came back in about an hour with a gun, and without provocation shot the deceased in the back of the head, killing her instantly.
The only exceptions are to the charge and refusal to charge, none of which, in our opinion, can be sustained.
The able charge of his Honor correctly stated the law, and fully and clearly presented every reasonable contention of the prisoner. It met the requirements of section 413 of The Code, which provides that the court "shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon." He is not required to give in ipsissimis verbis the instructions prayed by the defendant, either in civil or criminal cases, even if they are proper. It is sufficient if they are given substantially in the charge. S. v.Bowman, 80 N.C. 432; Rencher v. Wynne, 86 N.C. 268; S. v. (725) *Page 498 Boon, 82 N.C. 637; S. v. McNeill, 92 N.C. 812; S. v. Anderson, 92 N.C. 732;S. v. Jones, 97 N.C. 469; S. v. Brewer, 98 N.C. 607; Newby v.Howell, 99 N.C. 149; Michael v. Foil, 100 N.C. 178; Conwell v. Mann,100 N.C. 234; S. v. Hargrove, 103 N.C. 328; Edwards v. Phifer, 121 N.C. 388;Norton v. R. R., 122 N.C. 910, 934. In the last case, on page 934, in line 13, a mistake of the printer inserted the word "objectionable" instead of "unobjectionable." What we said was, "That the court is not required to give the special instructions as asked, even whenunobjectionable," if they are substantially included in the charge. A clear and connected charge, giving all the proper instructions in their logical order, without undue prominence to any one phase of the case, is better calculated to give the jury a correct impression of the law as applicable to the facts under consideration than can be obtained from any number of special instructions. Of course, the prisoner has the right to have every reasonable theory of his defense properly presented to the jury, but when this is done he has no further cause of complaint.
The exceptions are practically all pointed to the provisions of chapter 85 of the Laws of 1893, the first two sections of which are as follows:
"SECTION 1. All murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any kind of willful, deliberate and premeditated killing, or shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony shall be deemed to be murder in the first degree, and shall be punished with death.
(726) "SEC. 2. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the penitentiary."
It has been settled by a long line of authorities that the killing with a deadly weapon implies malice, and that where it is admitted or proved beyond a reasonable doubt the prisoner is presumed to be guilty of murder, and the burden then rests upon him of showing such facts as he relies on in mitigation or excuse. This rule of the common law has never been questioned in this State. S. v. Byrd, 121 N.C. 684, and cases therein cited.
Since the passage of the act of 1893, this presumption extends only to murder in the second degree, and the State is still required to prove beyond a reasonable doubt the facts necessary to bring the homicide within the statutory definition of murder in the first degree. S. v. Fuller,114 N.C. 885, 898; S. v. Covington, 117 N.C. 834, 862; S.v. Wilcox, 118 N.C. 1131, 1132; S. v. Dowden, ibid., 1145, 1150; S.v. Lockyear, ibid., 1154, 1157; S. v. Thomas, ibid., 1113, 1118; S. v.Finley, *Page 499 ibid., 1161, 1172. In this last case the eighth syllabus is incorrect, as it differs from the opinion in asserting the presumption of murder in thefirst degree.
Where the circumstances of the killing do not bring it within the classes which by the statute are made per se murder in the first degree, the State must prove deliberation and premeditation, but this it may do circumstantially, and not necessarily by express and positive evidence. If all the circumstances surrounding the killing are such as satisfy the jury beyond a reasonable doubt that the homicide was willful, deliberate and premeditated, it is their duty to find the prisoner guilty of murder in the first degree. This is the rule deducible from all (727) the cases above cited, and is generally approved. 1 McClain on Criminal Law, sec. 359; Desty Am. Crim. Law, sec. 129 k, p. 399; Bishop's New Criminal Law, sec. 728, subsec. 3.
It appears from the evidence that the prisoner had some words with the deceased, went off, and came back in about an hour armed with a loaded gun with which he shot and killed deceased. We may well adopt the words of the Court in People v. Conroy, 97 N.Y. 62, 72, and say that "we are of the opinion that the jury was justified in inferring from the facts and circumstances proved that the death of the deceased was the result of deliberation and premeditation on the part of the prisoner."
The several prayers of the prisoner to the effect "that to convict of murder in the first degree, the prisoner must have used the same degree of deliberation and premeditation as would have been used if he had killed the deceased with starvation," etc., were properly refused. The law mentions certain kinds of homicide which are per se murder in the first degree, and then further provides that "any other kind of willful, deliberate, and premeditated killing" shall also constitute murder in the first degree. In the former class, deliberation and premeditation are presumed, while in the latter they must be proved. Even if we were to make the law read "any otherlike kind" of killing, as contended by the prisoner, we could see but little difference between the act of one who lies in wait and one who arms himself and goes to seek his helpless and unsuspecting victim.
We are always willing and anxious to give to any one charged with a capital felony the fullest protection of the law, and it is only after the gravest consideration that we ever affirm a judgment carrying with it the sentence of death. Whatever may have been his crimes, he (728) who stands in the shadow of the gallows on the threshold of eternity receives our sincere commiseration; but we owe a duty to the majesty of the law and to the helpless thousands who can look to it alone for protection. In the performance of that duty the judgment must be
Affirmed. *Page 500 Cited: S. v. Smith, 125 N.C. 622, 627; S. v. Hicks, ibid., 640; S. v.Medlin, 126 N.C. 1130; S. v. McDowell, 129 N.C. 529; S. v. Caldwell,ibid., 685; S. v. Hicks, 130 N.C. 710; S. v. Bishop, 131 N.C. 752; S.v. Daniels, 134 N.C. 675; S. v. Clark, ibid., 714; S. v. Worley,141 N.C. 767.