(dissenting): The exact point presented in this case is decided in State v. Gilchrist, 113 N. C., 673, and State v. Covington, at this Term, construing the Act of 1893 (chapter 85) “dividing the crime of murder into two degrees.” In those cases the Judge charged in almost the very words used by the Judge in this, telling the jury that the prisoner, upon the evidence, was “guilty of murder in the first degree or of nothing.” This was approved by unanimous opinions of this Court, and there is nothing in the present case which calls upon the Court to ignore its own decisions to follow the unsettled construction of the Pennsylvania courts upon a somewhat different statute. To the same effect are three decisions upon Chapter 434, Acts 1889, dividing the crime of burglary into two degrees, in which the identical words are used as to the duty of the jury, as in the act dividing the crime of murder, and are construed as in State v. Gilchrist and State v. Covington, supra. In State v. Fleming, 107 N. C., 905 (on page 909), the *823Court bolds that this'does not give the jury the discretion to convict of the second degree, but the conviction should be in the first or second degree, according to the evidence; and the court should instruct what degree of burglary a given state of facts would be, if found to be true. This was cited and approved in State v. McKnight, 111 N. C., 690, in which it is held (opinion by Shepheed, C. J.) that the court did not err in refusing to charge that the defendant could be convicted of a lesser grade of burglary than in the first degree if they believed the evidence. In the charge there approved the court intructed the jury that, if certain evidence was believed, they should convict of burglary in the first degree, and, if it was not believed, not to convict of burglary at all. The same authority was cited again in State v. Alston, 113 N. C., 666, the Court holding that the Judge properly should have instructed the jury as was done in the present case. Judge Brown, therefore, followed the uniform decisions of this Court upon an exactly similar statute, which ruling is sustained by the almost uniform decisions of the courts of other States upon similar statutes. There are repeated decisions in our Court, besides those resting upon the presumption from the use of a deadly weapon, approving a charge, “If the jury believe the evidence the defendant is guilty of murder.” Among these it is sufficient to refer to State v. Baker, 63 N. C., 276. His Honor did not instruct the jury to convict, but simply told them that this state of facts, if found beyond a reasonable doubt to be true, would constitute murder in the first degree; just as if he would have gone on, if there had been conflicting evidence, to instruct them that another state of facts, if believed, would have constituted murder in the second degree, and still ano'her, manslaughter. There being but one state óf facts in evidence, the court, after “explaining to the jury the degrees of murder, and *824that the credibility of the witnesses was peculiarly for the jury, and thatyn a case of this importance the jury should exercise great care, and weigh the evidence well, and be fully convinced of its truth before conviction,” instructed the jury that this state of facts, if fully believed, would make the prisoner guilty of murder in the first degree, and if not believed, the prisoner should be acquitted. The jury found the uncontradicted testimony to be true. If these facts constitute murder in the first degree, his Honor committed no error in telling the jury so. If these facts do not constitute murder in the first degree, then his Honor erred in instructing that they did. There is nothing else in the case.
Now, what is the undisputed and uncontradicted state of facts which the jury have passed upon by their verdict, and found to be the truth. Succinctly stated, it is this : The deceased, according to her mother, about 10 to 12 years old, and, according to the physician, apparently 14, being “well developed,” was sister to the prisoner’s wife, and had been living with them in Yirginia. For some reason she returned home to her parents about last Christmas, and in February last the prisoner appeared at their house, and spent Sunday night. He wished the little girl to fondle his head, and on her refusal struck at her with a razor, and swore he would kill her. He was armed with a pistol, razor, and knife, and, firing off his pistol, swore that the girl should go back to Yirginia with him, or he would kill her. On Monday the prisoner stated to the girl’s brother, in the woods, that he “intended to make Tessie [the deceased] go oif with him or it would go hard with her.” On Tuesday the prisoner came back with his pistoland asked if the girl had returned. When she came up she attempted to run, and the prisoner followed her, grabbed her by the arm, and pushed her at arm’s length in *825front of Min, pulling out his pistol, and trying to carry her off. She appealed to her mother, weeping and beseeching her not to let the prisoner carry her off. The mother called the child’s father to assist her in preventing the abduction. The father came from the field, to rescue his child, armed with some rocks. The prisoner advanced on •him with his drawn pistol, and the father took shelter behind a house. The prisoner thereupon again grabbed Tessie, and in spite of her crying and begging her father, mother, and brother to save her, pushed her along the road in front of him. The mother then commenced shrieking for a neighbor to come to her help, and the prisoner thereupon put his pistol to the child’s back, fired, and ran off into the woods. She died therefrom two days later. The prisoner was not drinking.
Such are the facts in this case, which were tin contradicted, and which the jury, under the caution given them by the accomplished Judge who presided at this trial, have found to be true beyond all reasonable doubt. The jury having found the evidence to be true, we cannot throw doubt upon their finding. In this state of facts there is no element of murder in the second degree or of manslaughter -which the Judge could have submitted to the jury. The sole question was whether the facts were true or not. If true, a more unprovoked, cold-blooded murder was never committed within the bounds of this State. No Legislature in North Carolina has ever passed an act which they could have intended should be construed as directing that so brutal a slaying of a helpless victim, while calling upon her kindred for help, should be held other than m arder in the first degree. The last Act on the subject (1898) provides : “The wilful, deliberate, and premeditated killing, or any killing which shall be committed in the perpetration of or in the *826attempt to perpetrate * * * a felony shall be deemed murder in the first degree.”
It is not necessary to dwell upon the Attorney General’s second ground, — that the crime, having been committed in an attempt to commit abduction, which is a felony, was necessarily murder. That the prisoner was attempting to take the young girl from the care of her parents for purposes of lust is an inference which the jury might have been justified in drawing, but that the killing was, in the language of the statute, “wilful, deliberate, and premeditated,” is not an inference, but the necessary consequence, the very fact itself, which the jury found when they found the above state of facts to be true.
In State v. Norwood, 115 N. C., 789 (since the Act of 1893), the. presiding Judge refused, though requested by written prayers, to submit the phases of murder in the second degree or manslaughter (and they were not even prayed for in the present case), but told the jury that “premeditation did not require any considerable length of time; and if the prisoner, after conceiving the purpose to kill, immediately carried the resolve into execution (there being in that case, as in this, no provocation or heat of passion), malice would be presumed, and the premeditation contemplated by the statute would be shown.” This Court, sustaining the charge, said: “If it is shown that the prisoner deliberately determined to take the child’s life by putting pins in its mouth, it is immaterial how soon, after resolving to do so, she carried her purpose into execution.” In State v. McCormac 116 N. C., 1033, the Court again says : “It is not essential that the prosecution, in order to show j>rima faeie premeditation and deliberation on the part of a prisoner charged with mur'der in the first degree, should offer testimony tending to prove a preconceived purpose to kill, formed at a time *827anterior to the meeting when it was carried into execution.” A prima facie case is one which is conclusive unless evidence, from which a different conclusion may be reasonably drawn, appears somewhere in the case.
Aside from the previous threats shown in the present case, the prisoner placed his pistol at the back of a defenseless girl, who was offering no resistance, save her cries for help. There was nothing to show that he acted thus to defend himself from her, nor as in the heat of a contest with an opponent under circumstances which could mitigate the offence to manslaughter or murder in the second degree. He placed his pistol at her back, blew a hole in her, and ran off into the woods. This is not the presumption arising from the use of a deadly weapon, but here-the naked facts themselves, unless added to, are susceptible of no other interpretation, when found to be true, than that the killing was “wilful and deliberate,” and hence murder in the first degree. If the jury found these facts to be true (as they did), they would not have been warranted in justice in finding the prisoner guilty of murder in the second degree or of manslaughter. As they could not justly have done so, his-Honor committed no error in not submitting those phases to them, and in telling them that if this state of facts was, beyond reasonable doubt, the truth of the occurrence, it constituted murder in the first degree.
There are decisions under the Pennsylvania statute which directly sustain the charge of the court below in this case. Respublica v. Mulatto Bob, 4 Dall., 145; Commissioners v. Smith, 2 Wheeler, Cr. Cas, 79. And there is a Pennsylvania case apparently conflicting with these cases, but which can be readily distinguished. It would'be auseless labor, however, to consider and reconcile Pennsylvania decisions, — which are not always reconcilable, — and that *828task can best be left to the Court that made them. But one thing is clear beyond all technical and skillfully drawn distinctions, and that is, by our law the wilful, deliberate killing of a human being is still murder in the first degree; and, taking the facts of this case as a jury have found them, the prisoner wilfully, deliberately, without provocation or legal cause to excite his anger against her, placed his pistol at the back of a defenseless girl, whom he was trying to carry away from her home, against her cries for help and the efforts of her father to save her and the shrieks of her mother, and in cold blood shot her to death. This is still murder in_North Carolina, and of the kind for which, the perpetrators can be hung. These facts can admit of but one inference, and, that being so, his Honor committed no error in telling the jury, if they found beyond all reasonable doubt that such were the facts concerning the killing, they should find the prisoner guilty of murder in the first degree and of no lesser offence.