1. Tbe prisoner excejhed to tbe refusal of tbe court below to remove tbe cause for trial to some adjoining county.
As admitted in tbe brief of tbe learned counsel for tbe prisoner it bas been repeatedly decided by this Court that a motion to remove is almost always a matter witbin tbe sound discretion of tbe nisi prius judge and not reviewable bere. Pell’s Revisal, sec. 426, and cases cited.
We find nothing in tbe record which takes this case out; of tbe general rule.
2. Tbe prisoner excepts to tbe ruling of tbe court permitting tbe introduction of evidence by tbe State tending to prove that not long before tbe homicide tbe deceased bad been called out on tbe piazza of bis residence at night, shot at and wounded, as contended by prisoner, by an unknown person. Tbe prisoner’s contention is evidently based upon tbe theory that there is no evidence connecting tbe prisoner with this particular affair. Upon that theory tbe authorities cited by tbe learned counsel support tbe objection to tbe evidence.
In this case, however, there is abundant evidence, which, if believed, tends to prove not only that tbe deceased was shot on tbe occasion in question, but that tbe prisoner either did tbe shooting himself or was present in person aiding and abetting it.
Tbe witness Bichardson testified that tbe prisoner, just before tbe shooting occurred, said to witness, “You go back over there to Carter’s bouse and get him on tbe porch and get him drunk; I am going to get him.” Tbe same witness said be was at deceased’s bouse tbe night when tbe shooting occurred, and that be recognized defendant outside by bis voice. Again, be testified that on another occasion, while defendant was talking to him about Carter, be (defendant) said: “Pace, I ain’t afraid of nobody. I shot one man, and I am tbe very damned frog that muddied the pond.”
In addition to this, tbe record shows other matters tending to connect tbe defendant with tbe first shooting, amply sufficient to convict him of tbe crime if be bad been indicted for it.
It early became necessary for tbe protection of society that courts should permit tbe evidence of circumstances to establish
If there was nothing to connect the prisoner with this particular shooting testified to by Eichardson, it would be a collateral fact from which no inference could reasonably be drawn injurious to the prisoner and would therefore be incompetent. But when his extraneous crime has been brought home to the prisoner, then the fact becomes competent, because it is much more consistent with his guilt than it is with his innocence, of the crime of shooting the same person a short while after. S. v. Alston, 94 N. C., 932; 1 Wharton Crim. Law, secs. 631-670. A previous attempt by the prisoner to assassinate his victim is very potent evidence of the quo animo, the motive, and of a fixed purpose to take the life of the deceased.
There are a number of illustrative cases cited in Lawson on Presumptive Ev., p. 589, directly in point, some of which we cite: V is indicted for shooting at P with intent to kill. Proof that V at a previous time had shot at P is relevant. S. v. Voke, R. & R., 531.
A was indicted for poisoning his wife by giving her laudanum. The fact that A had on a former occasion given her laudanum, which made her sick, is relevant. Johnson v. State, 17 Ala., 622.
In the case of Rex v. Dorset, 2 C. & K., 306, defendant was charged with having wilfully set fire to a haystack. The fact that, on a previous day, the risk was seen to be on fire and the defendant to be near it, was held relevant. While the cases cited by counsel for prisoner recognize the general rule that evidence of a distinct substantive offense cannot be admitted in support of another offense, they also recognize the exceptions, within which the fact sought to be proved in this case clearly falls.
3. Prisoner excepted to evidence of a declaration made to P.
This was both relevant and competent. Tbe fact tbat tbe defendant went at 1 o’clock and waked witness and wanted to talk about tbe shooting, was conduct on tbe part of tbe defendant which tbe jury was entitled to consider along with tbe other evidence.
“Everything calculated to elucidate tbe transaction is admissible, since tbe conclusion depends upon tbe number of links, which alone are weak, but taken together are strong and able to conclude.” S. v. Bradham, 108 N. C., 794.
Other declarations of tbe prisoner were introduced, over Ms objection, which we think were clearly competent, but it is unnecessary to notice them more particularly.
4. Tbe prisoner introduced a witness, Starnes, and asked bim this question: “State whether or not, in your opinion, Charlie Plyler could have walked from tbe barn tbe straigbtest line to the scene of the killing while you were going tbe distance to where you beard tbe gun fire.” This was excluded by tbe court. He was then asked if it were possible for any man to have done it. This was also excluded.
One of tbe points made by prisoner in bis defense is tbat be could not have walked from bis premises where be was seen at a certain hour to tbe scene of tbe homicide in time to have fired tbe gun tbat is supposed to have killed deceased.
Evidence of tbe distance, character of tbe earth’s surface, thickness of tbe woods, etc., was offered and received to establish prisoner’s contention.
It was not proper, therefore, for tbe witness to pass on that contention. Tbe rule in opinion evidence is tbat if all tbe facts are before tbe jury or can be placed there, then it is not competent for tbe witness to express bis opinion upon such facts, as tbe jury can equally well draw tbe inference for themselves.
The prisoner, however, got the full benefit of Starnes’ knowledge because on cross-examination by the State he testified, against prisoner’s objection, that he traversed the space between the barn and the scene of the homicide in three minutes. This evidence was not only competent, but was positive testimony to a material fact and was well calculated to assist the jury in determining whether or not it was possible for the prisoner to get to the scene of the homicide before the report of the gun was heard by a witness who had passed Plyler’s place and seen him, and then gone some distance up the road. This witness had testified that it took him ten or fifteen minutes to go from the house to the place where he was when he heard the report of the gun.
5. We come now to the most important exception and one which impresses us with.a deep sense of responsibility in a case of this gravity. The prisoner contends that, taking all the evidence to be true, it is not sufficient in probative force to warrant a conviction, and that the court erred in not directing a verdict of not guilty.
We have scrutinized the evidence with that care which the importance of the case demands, and have no hesitation in concluding that his Honor was fully justified upon the evidence in denying the prisoner’s prayer. It is not necessary to go into the evidence in detail, but we will briefly refer to its salient features.
The deceased was a brother-in-law of prisoner and a near neighbor. He left his home Wednesday about six P. M. and was last seen going towards a spring in the woods near which his dead body was found on Friday following. That he was foully murdered by some one, who shot him in the back of the head from behind a tree, is manifest.
About the same time the deceased was seen going towards the spring, the prisoner, with two others, was seen to start from prisoner’s premises in same direction, the prisoner saying, “Let’s go
There is abundant evidence of ill will, bad blood motive, and especially an attempt by prisoner to assassinate deceased at night by shooting him on his piazza from ambush a short while before the homicide. There is evidence of threats to kill made not long before the homicide. After the discovery of the body there is evidence that prisoner attempted to induce certain persons to “keep their mouths shut.” Declarations of the prisoner, as well as his acts, tend to prove that he knew who killed Parks and all about- the homicide, but refused to say who it was that committed the murder. There was further evidence that Plyler had a talk with a witness in a restaurant on the day the body was found, in which he said it did not make much difference about Parks being killed; he was a sorry man anyway.
There was also evidence that after the body was found and the investigation began, the defendant tried to escape.
6. Several exceptions are taken to the charge of the court upon the quality of circumstantial evidence and when it is proper to convict or acquit.
This matter has been discussed so much by the courts that we will not “thresh over old straw.” We copy that portion of his Honor’s charge and give it our full approval as a lucid statement of the law, at which the prisoner has certainly no reason to complain.
“The law says that circumstantial evidence is a recognized and accepted instrumentality in the ascertainment of truth; and it is essential and when properly understood and applied is highly satisfactory in matters of the gravest moment. The facts, relations, connections and combinations between the circumstances should be natural, clear, reasonable and satisfactory. When such evidence is relied upon to convict, it should be clear, convincing and conclusive in all its combinations and should exclude all reasonable doubt as to guilt. In passing upon such evidence, it is the duty of the jury to consider all circumstances relied upon to convict and to determine whether they have been
“After considering the evidence in this way, and determining the circumstances which are established beyond a reasonable doubt, the next thing for the jury to determine is, do these circumstances exclude every other reasonable conclusion except that of guilt? If so the evidence is sufficient to convict; otherwise, not.”
The last objection which the defendant raises is to the fact the. jury were told, during their deliberations, of another murder in the same section of the county, which was committed during the trial of this case. The judge presiding took every precaution that he could in the matter. He sent word at once to the officer who had the jury in charge not to let the matter be disclosed to them. This was too late, though, for they had already been apprised of it. We do not think there is anything in this, nothing else appearing, which should entitle the defendant to a new trial. Nothing in the record shows, so far as the record discloses, that the jury took this matter into consideration one way or another.
Upon a review of the entire record, having considered every assignment of error, we are of opinion that they are without merit and that there is
No error.