dissenting: Tbe prisoner bas been convicted of murder in tbe first degree, and a new trial is ordered by tbe majority of tbe Court upon tbe ground alone that tbe evidence presents a phase of manslaughter, and that this was not submitted to tbe jury.
I cannot agree to this disposition of tbe case.
Tbe record states that after tbe conclusion of tbe evidence, “tbe defendant, through bis counsel, tendered tbe State a plea of guilty of murder in tbe second degree,” and that tbe plea was rejected.
His Honor also charged tbe jury, in tbe presence of tbe prisoner and bis counsel, and without any suggestion that be was stating tbe contentions of tbe parties incorrectly, that “In this case tbe defendant admits killing with a deadly weapon; that be intentionally shot tbe deceased with a deadly weapon, and that tbe deceased died from tbe wound. He contends that you ought to render a verdict of murder in tbe second degree. His counsel ask you to convict him of murder in tbe second degree, but they ask you not to convict him of murder in tbe first degree, because they contend that there is no evidence which would justify you in finding tbe killing was done with deliberation and premeditation.”-
There was no request to charge upon manslaughter.
It therefore appears that tbe case was tried.by tbe State and tbe defendant upon tbe theory that tbe defendant was guilty of murder in tbe first or second degree, and that tbe defendant admitted that be was guilty of murder in tbe second degree; and, if so, a failure to charge on manslaughter was not prejudicial to tbe defendant.
Tbe Court says, however, that this is an admission of law, and is not binding on tbe Court; but to my mind it is an admission of fact.
Tbe distinguishing feature between murder in tbe second degree and manslaughter is malice, and no one knew so well as tbe prisoner and bis counsel whether tbe killing was with malice or under passion caused by legal provocation, and as I understand tbe plea tendered and tbe admission, it was tantamount to saying that tbe prisoner killed tbe deceased maliciously and not from sudden passion; and this is a fact. Foster’s case, 130 N. C., 666, so far from militating against this position, confirms it.
A new trial was ordered in that case because of tbe erroneous charge that flight was a circumstance to be considered on tbe question of premeditation and deliberation.
' Tbe admission of counsel that tbe prisoner was guilty of murder in tbe second degree is, I think, dealt with as an admission of fact, and binding, and tbe further error pointed out is not in failing to charge on manslaughter, but on murder in tbe second degree, which the Court says was necessary in order for tbe jury to understand tbe elements entering into murder in tbe first degree.
*798Again, I tbink the prisoner has not been prejudiced by the failure to charge on manslaughter because it is not conceivable that the jury would have convicted of manslaughter under the most favorable charge when counsel for the prisoner were asking them to convict of murder in the second degree, and when in response to that plea they said they were satisfied beyond a reasonable doubt that the killing was with premeditation and deliberation.
Clark, J., says in S. v. Munn, 134 N. C., 681: “The point counsel wishes to present, though not excepted to, that there was error in the ’ charge as to mitigation from murder in the second degree, would not be before us even if it had been excepted to, for the reason that the jury found, upon the very full and careful charge of the court as to the difference between murder in the first and second degree, that beyond all reasonable doubt the prisoner slew the deceased willfully, deliberately, and with premeditation, and was guilty of murder in the first degree. The State has thus satisfied them of facts raising the crime above murder in the second degree, which only was presumed from the killing with a deadly weapon. If there were error in the charge as to mitigation below murder in the second degree, it was therefore immaterial error.” Walker, J., in S. v. Lipscomb, 134 N. C., 691: “But if there had been error in the instruction to which exception was taken, we do not see how the defendant could have been prejudiced thereby, for the jury found that he killed his victim intentionally and willfully and with premeditation and deliberation, and it could make no difference, with that fact found by the jury from the evidence, whether the presumption of the common law as to malice arising from the use of a deadly weapon had been rebutted or not. Prejudice could not come from such a charge, if erroneous, unless the defendant had been convicted of murder in the second degree and there had been evidence of facts or circumstances in mitigation or excuse of the killing. We have said there was none.” Brown, J., in S. v. Teachey, 138 N. C., 597: “The prisoner excepts because the court failed to present to the jury in this connection a view of manslaughter. The prisoner was convicted of murder in the first degree, and we do not see how it was prejudicial to him because his Honor failed to charge the jury on the question of manslaughter. S. v. Munn, 134 N. C., 680; S. v. Lipscomb, ibid., 689.” Walker, J., in S. v. Bowman, 152 N. C., 821: “The jury having found the actual facts to be that a conspiracy had been -formed between the defendants, they will not be permitted now to aver that they killed the deceased in a heat of passion or upon a legal provocation, or for any other reason which would reduce the crime to the degree of manslaughter. It therefore follows logically that any error which the court may have committed in its charge, as to that offense, upon a hypothetical state of facts, which the jury, by their verdict, have repudiated, is immaterial and harmless, even if such *799error was committed. S. v. Munn, 134 N. C., 680.” Brown, J., in S. v. Johnson, 161 N. C., 266, speaking of an exception to a charge on manslaughter : “As the prisoner was convicted of the greater offense of murder in the first degree, this exception is not material.”
While it is true that in several of these cases it is said there was no evidence of manslaughter, the excerpts relate to failure to instruct on that degree of homicide, and the opinion of the Court in each is that such error is immaterial when the jury has convicted of the higher crime.
It is also doubtful if there is any evidence of manslaughter. The prisoner was sitting in a building 30 x 60 feet, with a partition about the middle, when the deceased came in. An altercation ensued, and the deceased either struck or shoved the defendant, and caused his cap to fall off. No weapon was used and so serious damage inflicted. The defendant left the front room and went to the rear of the building. He returned immediately, picked up his cap, and said to the deceased, “That’s all right. I’ll get you.” He went to the rear of the building, returned immediately with a gun, and saying to the deceased, “You are a G— d— s— of a b — ■!” fired the shot which caused the death of the deceased.
Glare, C. J., concurs in this opinion.