(dissenting): The crime of murder, by the Act of 1893 (Chapter 85), is divided into two degrees. Section 1 provides that: “All 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 felony, shall be deemed to be murder in the first degree and shall be punished with death.” Section 2 makes all other kinds of murder murder in the second degree, punishable by imprisonment. Section 3 declares that: “Nothing herein contained shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.”
*829In North Carolina, previous to the enactment of that statute, if a person killed another without any, or upon slight provocation, as for offensive words, for instance, or with an excess of violence out of all proportion to the provocation, the law placed him on the same plane as it did the murderer who had deliberately planned and executed a killing from a long-cherished feeling of revenge, or by waylaying for the purpose of robbery. The rule was that, where the killing was proved, malice was always presumed ; and where there was malice the law declared the homicide to be murder, and the punishment death. It was to do away with this forced and artificial conclusion which the law drew of the equal guilt of the man who had committed a homicide on a sudden heat without malice in fact, even though done without provocation, and of the man who had deliberately, wilfully, and premeditatedly planned the killing for revenge or greed. The statute was enacted to afford a more rational rule for the trial and punishment of him who had committed a homicide on the impulse of the moment, and without malice in fact, and not to take from out the common-law rule a killing where, by undisputed testimony, it was proved to have been done under circumstances of threats and preparation and deliberation. It was not intended that it should be left to the jury to determine judicially the effect of such testimony, but that they should, as formerly, pass upon its credibility, leaving it to the court to instruct them as to its legal effect. If, in a case where the crime has been committed since the enactment of the statute, the State should show that the killing was sadden and without provocation, and no more appears, the accused cannot be convicted, as under the old law, of murder in the first degree, but only of murder in the second degree, though a deadly weapon was used. But, if the testimony *830is undisputed and uncontradicted and goes to show the hilling by any of the means named in Section 1 of the Act, the rules of the common law ought to apply. The Judge ought to instruct the jury that they are to consider thoroughly the credibility of the testimony, and that, if they believe it to be true beyond a reasonable doubt, they should render a verdict of guilty in the first degree. In cases Jike the one before the Court the language of the Act, which reads, “but the jury before whom the offender is tried shalL determine'in their verdict whether the crime is murder in the first or second degree,” ought not, in my opinion, to be construed to mean more than that the jury shall, under proper instructions from the court upon the character of the testimony, consider it simply in the light of its cxedibility, and return their verdict as they would do in all other cases where the testimony was undisputed, and where they had received instructions from the court as to the legal bearing and effect of such undisputed testimony, should they find it to be true. This construction is strengthened when it is noticed that the words which declare the duty and power of the jury under this statute stand in direct connection with, and in the same sentence with, that part which treats of the nature and form of the bill of indictment.
Chapter 434 of the Acts of 1889, divides burglary into two degrees, first and second, — the first punishable with death, the second by imprisonment; and Section 3 of that Act reads as follows : “That when the crime charged in the bill of indictment is burglary in the first degree the jury may render a verdict of guilty of burglary in the second degree if they deem it proper to do so.” The last named section seems upon its face to give the jury broader latitude in making up their verdict than is conferred upon them in the Act dividing murder into two degrees. This *831Court has passed upon the burglary statute several times, and I believe it has sustained me in the view I have expressed in this opinion.
In State v. Fleming, 107 N. C., 905, the defendant was indicted for burglary. On the trial the court, charged the jury that certain facts testified to amounted in law to a sufficient “breaking” if they believed the evidence ; and this Court sustained the charge. It is true, the bill of indictment was, in form, under the common law; but this Court said further in that case: “We do not understand the provision of the statute that on an indictment for burglary in the first degree ‘the jury can return a verdict of burglary in the second degree, if they deem it proper so to do’ to make such verdict independent o,f all evidence. The jury are sworn to find the truth of the charge, and the statute does not give them a discretion against the obligation of their oaths.”
In States. McKnight, 111 N. C., 690, an indictment under the Statute of 1889 for burglary in the first degree, the house broken into was an inhabited dwelling house, and the accused admitted that he had broken into and taken money therefrom. The counsel for the defendant asked the court to instruct the jury that they might convict for a lesser offence than that charged in the bill of indictment, as provided in Section 996 of The Code. The instruction was refused and this Court said, in substance, that there was no error in the refusal, for the only question to be determined by the jury was whether it was done in the night time, the prisoner having admitted the breaking and entering and the taking of the money. If it was done in the night time it was burglary in the first degree..
In State v. Alston, 113 N. C., 666, the defendant was indicted for burglary. The charge of his Honor to the jury *832was that, “although all the evidence was that the family was present in the house” at the time the accused was charged to have broken into it, they might find him guilty of burglary in the first degree or guilty in the second degree. This Oouit said in reference to that charge : “The court should have charged the jury that, if they believed from the evidence that the family was present in the house at the time of the felonious entry as charged, they should convict the defendant of burglary in the first degree. Under such circumstances the jury are not vested with the discretionary power to convict of burglary in the second degree. The power to commute punishment does not reside with the jury.” The Court further said, in substance, that it would have been improper for his Honor to have instructed the jury that all the evidence was that the family was in the house at the time of the felonious entry, and that they should find the defendant guilty of burglary in the first degree; that it was only where the jury believed that the family was in the house to be a fact that they could have returned such a verdict. The jury must pass upon the credibility of the evidence.
In the case now before the Court, the accused, on his trial, offered no testimony. That which was offered by the State was undisputed and consistent. The substance of it was that the deceased, who the mother said was about 10 or 12 years old, and the physician who attended her said was about 14, and well developed, was a sister of prisoner’s wife, and had lived with them in Virginia a short while — for a part of the year 1894 — returning to her home in Yadkin county about Christmas of that year. On Sund.ay night before the homicide, which occurred the following Tuesday (16th February, 1895), the accused arrived at the home of the deceased, from Virginia, armed with a pistol, a razor and a knife. He insisted that the deceased *833should fondle his head, and upon her refusal slashed at her with his razor, and swore he would kill her. He then fired off his pistol, and swore that the deceased had to go to Virginia with him, or he would kill her. She said she did not intend to go. He left that night, but returned on the next day — Monday—and told her brother that “he intended to make Tessie (the deceased) go off with him, or it would go hard with her.” On Tuesday he returned, and, seeing cüe deceased, he drew his pistol. She tried to escapr irom him, and ran to her mother, but he “grabbed” her, and pushed her up the road. The mother called the father, at work in a field near by, who, upon his coming near, saw the situation and began to gather, stones which the accused noticing, he leveled the pistol at the father, and, still holding the child, drove him behind a house on the roadside. The mother ci-ying for the help of neighbors, and the girl begging for help from her brother and father, and imploring them not to let the accused carry her off, the prisoner placed his pistol immediately upon the back of the deceased and fired it, inflicting a wound from which she died two days afterwads. He fled into the woods after he had shot her. He was sober. There was no exception to the testimony, and, as stated before, he offered none. "What was there to submit the jury except the credibility of the testimony? The facts, if believed, constituted in law premeditation and malice. The case was well argued by the Attorney General, and by Mr. Holton for the prisoner. The decisions of the Court of Pennsylvania were relied upon by both to help sustain their several views. The Pennsylvania statute is like ours, and was the first of its kind enacted in the States. That Court, in the earlier cases on that statute, put the construction on it which I contend for here. Later decisions of that Court have reversed the former *834ones, and this Court, in the opinion filed in this case, has followed the later Pennsylvania cases, without, I think, giving due weight to our own decided cases in reference to statutes similar in nature to the one under' consideration. His Honor instructed the jury, after reciting all the evidence, that, if they believed it to be true beyond a reasonable doubt, the prisoner was guilty of murder in the first degree. This was, in substance, the charge which the Court gave in State v. Gilchrist, 113 N. C., 673, and which on appeal was approved. I think there was no error in the charge.
No Error.