dissenting: If I did not have grave doubts'of the guilt of the defendant, arid did not think there was serious prejudicial error in the instructions to the jury, I would acquiesce in the judgment’ of the court, because it is unfortunate to have a sentence of death affirmed by a bare majority vote, but, entertaining the views I do, I must give expression to them, -and in order that the materiality of the instructions, which I think are erroneous, may be understood and appreciated, it is necessary to review the evidence.
Dr. Hennessee was killed on the night of 31 January, 1918, as he alighted from the train at Glen Alpine. The train was an hour late, and did not reach the station until 6 :30 o’clock. It was deexo twilight and warm and misty. Dr. Hennessee, one other man, and two ladies left the train.
There is not the slightest evidence or suggestion of any motive on the part of the defendant to kill the deceased, nor does it appear that he had ever seen him before the night of the killing (they lived thirty or forty *797miles apart), but, on tbe other band, there was a keep hatred existing between the Pitts family and the deceased, because Dr. Hennessee had killed one of the family about five years before.
Mr. Hennessee, a brother, testified: “My brother had had trouble - with the Pittses; had a fight there about five years before.
“Q. Gorman Pitts was killed in that trouble ? A. He died afterwards in consequence of the wound — wounded and died. That was a fight between my brother and the Pittses. Five years before this, I believe. My brother had been indicted and tried for the murder of Gorman Pitts, and he was acquitted. Then later he was killed, and this indictment was against Aaron and Garfield Pitts.
“Q. You do know that there was very bad blood between the Pittses and your brother. A. Didn’t seem to do any business at all; they didn’t have any dealings with each other; didn’t speak when they would meet in the road; that had gone on for a number of years.
“I suppose there was a bitter feeling between them. That there was really a feud between them was talked in the country.”
There is no evidence that any one was standing near enough to the person who did the shooting to point out Dr. Hennessee as he left the train.
Why, then, should the prisoner, without provocation, kill a man he did not know, and why did he shoot Dr. Hennessee, whom he had never seen, instead of the other man, who got off the train immediately behind him ?
The only witnesses relied on by the State to identify the defendant as the guilty person are Eamsey and Amos, and without their evidence the verdict could not be permitted to stand.
Both of these were on the train, and were looking through the window glass.
Eamsey testified, among other things:- “Just as the train stopped, about the time, I heard a, shot; as I heard it I put my eyes up to the window and looked out; as I did I could see a man’s face just in the shadow of the light; you know how the light comes down out of the train, wide at the bottom and comes up narrow through the window; I could see a man about 15 feet from me, and something like 12 or 15 feet from the train, almost at an angle of 45 to 60 degrees, out from me to the train, and as he approached he shot just as fast (indicating), bang, bang, bang, bang, just like that; I saw some one right out of the door; couldn’t tell whether it was a man or who it was, or whether they ran forward, backward or down, but as this man continued to shoot, he came towards the train round towards my window, he appeared to be shooting under the train; and as he finished shooting he was in the light, plain up right along his neck, between his chin and his shoulders; I could see a perfect outline of this man, the coat he had on, the pistols he had in his hands— *798bad a blue pistol in one band and a nickel-plated one in tbe other; bad on a coat, just like a tan-colored raincoat, tan coat, wbicb I could see very plainly; came between bis knees and bis shoes, about half way between bis knees and tbe ground. I couldn’t see whether be bad on bis shirt, and couldn’t see his face for bis bat; if I bad known tbe man I could have told who be was very easily, but not knowing him I couldn’t. Just as be finished shooting he commenced to snap tbe pistols, and I ran to tbe door of tbe train to get out, and tbe officer of tbe train said, ‘You can’t get off,’ reached up to pull tbe bell cord, and I went back to my seat, and put my bands up and looked out, and as tbe train was moving off that man was still standing there where be was when I left tbe seat to go back to tbe door: I couldn’t tell tbe color of tbe bat be bad on; it was a broad-brimmed bat. "When I put my band up to tbe glass to look out I could tell perfectly plain what was taking place on tbe outside. I didn’t know who that man was at that time. I know now. It was Aaron 'Wiseman.”
There are six statements to be noted in this evidence: (1) That the man who shot was 15 feet from tbe witness, and 12 or 15 feet from tbe train; (2) that be held a pistol in each band; (3) that tbe witness couldn’t see bis face for bis bat; (4) that only one person, and not one or more, was shooting; (5) that after tbe shooting ceased tbe witness went to the rear door of tbe coach to get out, and when be was not permitted to do so be returned to his seat, and tbe man who did tbe shooting was still standing there, and tbe train was moving; (6) that be says he “could tell perfectly plain what was taking place on tbe outside.”
There is evidence of tbe good character of this witness, but be stands discredited on tbe record.
He testified: “I bad never seen Wiseman before. I recognized Wise-man as tbe man that did tbe shooting on tbe day be was a witness in tbe Pitts’ case. He was on tbe other side and I was for tbe defense; when be walked on tbe witness stand I recognized him, tbe outline of bis body, tbe movement as be walked. On that I swear that is tbe man, just as positive as I am that I am sitting here.”
Passing by any discussion of tbe character of a witness, who, when human life is at stake, will identify so positively a person whom be bad never seen before, and when tbe only marks of identity were “tbe outline of bis body, tbe movement of tbe body,” tbe witness was examined as a witness in behalf of tbe Pitts boys, who were on trial charged with tbe murder of Dr. Hennessee, and be did not then tell on tbe witness stand that Wiseman was tbe guilty party, although tbe disclosure, if true, would have resulted in their acquittal.
There is evidence that be told one other of his recognition of tbe defendant; also one of tbe counsel for the Pitts boys, but tbe last is con-*799tradieted, and does not seem to be reasonable, as no counsel would fail to avail bimself of so important a fact in defense of a client on trial for bis life.
Tbe witness was on tbe second-class coach, and be testified that be went to tbe rear platform after the shooting, and then returned to bis seat, and tbe man was still standing there and tbe train moving.
He also testified: “I went to tbe door of tbe rear of tbe coach; tbe ■officer of tbe train met me at tbe door of my coach, and I said, 'Let me get out, Cap,’ and be said, 'You can’t get out; going to pull out,’ and be reached up and pulled the bell cord, and as be did that I ran back to my seat. I think be closed tbe door. I said be was closing tbe door.”
Laughter, tbe flagman of tbe train, testified: “Two doors of that train were opened that night, tbe front end of my car, first-class car, and the front end of tbe second-class car; tbe second-class car was tbe next in front of me. No door was open behind tbe door I bad charge of.”
This evidence of tbe flagman is uncontradicted, and it shows that only two entrances to tbe train were open, one behind tbe witness Ramsey at tbe front of tbe first-class car, and one in front of tbe second-class car.
It is also corroborated by tbe evidence of J. E. Stafford, a witness for the State, who, with another commercial traveler, Kelly, was at tbe station to take tbe train. He says: “As Dr. Hennessee stepped down and walked around tbe shooting began, and I said to Mr. Kelly, 'Let’s run to tbe other end and get on,’ and we did, and tbe train began moving, and Mr. Kelly said, 'Let’s go back up and get on,’ and I ran back up and jumped on tbe train right over Dr. Hennessee’s bead.” Also, “I got to tbe chair car when tbe train started, and I saw it was locked and I turned and ran back to tbe first-class car. I knew I was tbe last man that went in at that door because tbe flagman bad my suitcases and I talked to him, and be closed tbe door.”
The evidence of Ramsey, if believed, establishes tbe fact that tbe entrance to tbe first-class car was closed before be returned to bis seat, and be does not say any one passed bis line of vision going to tbe platform of the second-class coach. On tbe contrary, be says “the train was not going five miles an hour; couldn’t have moved more than ten feet until be was out of my vision,” and if this is true, and tbe door of tbe first-class car was closed, tbe man who did tbe shooting was left at Glen Alpine, and did not enter tbe train. He could not have gotten on tbe chair car, because Stafford swears tbe door of that car was locked.
And still there is no denial of tbe fact that tbe defendant “Wiseman was a passenger on the train that night from Glen Alpin to Marion.
Tbe ticket agent swears be sold Wiseman a ticket about 5 :30 o’clock. Mr. Rabb, a witness of high character, testified as to what occurred at Glen Alpine: “I saw Aaron Wiseman that night in tbe coach I was in; *800he came in and sat down on the first seat; he came in while the train was there. I went up and talked to him a little; sat down by him. I had known him a few years before that. When he came in’the firing had ceased. I don’t remember how many drummers came in with him; two drummers came in. I don’t know how far he rode on that train; I went to Marion. I couldn’t tell you whether Wiseman came in when the train was in motion on before it started”; and W. M. Ramsey, who lives at Marion, testified that the defendant spent the night of the killing of Dr. Hennessee at his home.
The witness Amos, who was two or three seats in front of Ramsey, testified that he knew the defendant, and that he was the man who killed Dr. Hennessee.
There was evidence of his good character; and also evidence that his character was bad.
He admitted that so far as he knew he was the only on© who recognized Wiseman; that he knew the Pitts boys were in jail, charged with the murder; that they were on trial for their lives, and still he did not tell any one that Wiseman was the guilty party until eleven months thereafter.
He also testified: “I recognized Wiseman. The train didn’t have to move much to get him out of my sight; I was looking out of the window; I didn’t get out of my seat; he was still standing there the last time I saw him.”
It thus appears that both Ramsey and Amos, without whose testimony the State could not ask for a conviction, leave the man who did the shooting standing still at Glen Alpine when all the doors of the train were closed; that he passed out of their vision as the train moved forward; and the evidence shows conclusively that the defendant Wiseman was then on the train.
The least that can be said is that these witnesses were mistaken.
There are other remote circumstances relied on, but the case of the State must stand or fall on the evidence of these two witnesses, which shows, if it can be relied on at all, that one man, and not two or one or more, killed Dr. Hennessee.
The defendant introduced Sam Byrd, who was proven to be of good character and not related to the defendant, who testified: “When 21 stopped at the station I was standing on the east end of the platform of the depot. I saw Dr. Hennessee; he stepped from the train and started towards me.
“When the train stopped I was about the first besides those that alighted from the train. He started towards me and I started towards him; we had made to or three steps towards each other; were between 10 and 15 feet from each other, and two men appeared from behind Dr. Hennessee *801and began shooting; they fired, I would say, four or five shots, and there was a pause, and, seemingly, they turned apart of the way around as though they were going away, and suddenly turned back and began firing again; two men were shooting; they turned to the body of the man • which was lying on the ground at that time, and fired several more shots, possibly five or six other shots; and when they ceased firing they turned and left the body; one of the men went around in a circle towards me, and went in the direction of W". D. Pitts’ store, which is just south of the train and the station, just below the dirt road; the other man started back the other way, around the crowd, and just about the middle of the public road the two men came together and continued in the direction of W. D. Pitts’ store; the last I saw of the men was just about two or three steps of W". D. Pitts’ store door.
“Just as the men that did the shooting came right up close to the body, in hand-reach of Dr. Hennessee, they appeared from the darkness behind ; I couldn’t see where they came from. Both parties were shooting at the same time. The men were side by side, as close as two men could stand, as well as I could see.”
Note, according to this evidence, (1) two men did the shooting; (2) they were in “hand-reach” of Dr. Hennessee; (3) after the shooting they went to the Pitts’ store, and neither got on the train.
Jasper Heap, who was standing by Byrd, testified: “When the train stopped the shooting commenced, and they shot gravel in my face. I don’t know who was doing the shooting; two people were shooting when I saw them; shooting at Dr. Hennessee. At the time the shooting began Dr. Hennessee was 12 or 15 feet from me, east from me. When they began to shoot at him I reckon he was 8 or 10 feet from the side of the coach. The two men shooting at him looked like tall, slim men; one stood pretty close to his feet, and the other about four feet from him.
“Q. How close behind Dr. Hennessee? A. Eight at his feet. I couldn’t tell how many times they shot; I suppose two rounds of shot— about ten shots, I suppose. The shooting was so fast you couldn’t tell much about it, both guns firing the same time. These two men shooting were about four feet apart, and close to Dr. Hennessee. WThen the shooting stopped the two men turned and walked off towards Wi D. Pitts’ store.”
Miss Ellen Trexler, who was a passenger on the train, testified: “When the train stopped at Glen Alpine Dr. Hennessee got off first, Lum Branch followed Dr. Hennessee, I followed Lum Branch, and then Miss Smathers followed me — that is all that got off of that car. I heard some shooting. WThen I heard the first shot I was coming out of the train, just before I got to the door. Just as I got to the last step the last shot was fired, and I saw two men run towards W. D. Pitts’ store, and then *802I went borne. I left tbe station before tbe train did. I just saw one sbot. Just directly after tbe last sbot was fired tbe two men left going towards Pitts’ store. Tbe men I saw shooting went towards Pitts’ store. One was wearing a long black slicker or raincoat, and bad a bat pulled down oyer bis face; I couldn’t tell bow tbe other was dressed.”
Patton, tbe railroad agent, said be beard tbe shooting, and “went out there and two men were standing there — Sam Byrd and Jasper Reap— and I asked who got killed, and they said they didn’t know, but said tbe ones that killed him went towards W. D. Pitts’ store, in that direction; then I went immediately down to tbe store; I went pretty fast; trotted down there, run, I think; I pushed on tbe door and tried to get in, and it was fastened on tbe inside, and I couldn’t in; there was a dim lamp light in tbe store; then I looked in tbe window and seen Garfield Pitts with a pistol in bis band like that (indicating) ; it was a bright-looking pistol; looked like a large pistol; it was pointed directly towards tbe door.”
J. E. Stafford, a witness for tbe State, who boarded tbe train at Glen Alpine, testified: “Dr. Hennessee bad walked five of six or eight feet before tbe shooting began, it began firing as be was back of me, five or six feet. I saw tbe flash from two guns. I thought two men were using them. Tbe men I thought bad done tbe shooting walked from the depot towards W. D. Pitts’ store; were 30 or 40 feet from tbe train; it seems they were near tbe steps of tbe little porch.”
Dr. Goode, who examined tbe body of tbe deceased, testified that tbe sbot entered tbe back and side; that nearly all bad powder burns, and that a pistol would have to be held within 16 or 20 inches of tbe body to make such burns.
These are the material parts of the evidence, and, to my mind, they present two questions for tbe jury: (1) Are you satisfied beyond a reasonable doubt tbe defendant killed tbe deceased? (2) If so, are you satisfied beyond a reasonable doubt tbe killing was with premeditation and deliberation?
But counsel for tbe State saw in these two simple questions not only tbe possibility, but tbe strong probability of an acquittal, so they evolved tbe theory of a conspiracy between the defendant and tbe Pitts boys, and in response to this position of tbe State, bis Honor charged: “If you find, however, that when Dr. Hennessee alighted from tbe railroad train be was assaulted with pistols from behind or on tbe side, by Garfield Pitts and Aaron Pitts, and that tbe Pitts boys, one or both, deliberately and prémeditatedly sbot and killed Dr. Hennessee, and you further find that tbe prisoner, Aaron Wiseman, was at tbe time in company with and in tbe presence of tbe said Pitts boys, and that be was actually cooperating with them, or aiding, abetting, and encouraging them in deliberately *803shooting and killing Dr. Hennessee, the prisoner, under such finding by you, would be guilty of murder in tbe first degree.”
This was repeated several times, and doubtless brought about the conviction of the defendant, and it is not only contradictory of the evidence of the State, that one man did the killing, but it has no evidence to support it.
The learned counsel for the State undertake to enumerate all the circumstances tending to show a conspiracy as follows:
“The defendant Wiseman lived in Avery County, some 30 or 40 miles from Glen Alpine, yet we find him six or eight weeks before the murder of Dr. Hennessee, on his way to see W. D. Pitts, and so anxious to see him that night, that, if he missed the train, he would have to take an automobile. We find him at Marion the afternoon before the killing that night before 12 passed the town, with two pistols on his person, one of them large and the other not so large. We find him, on his arrival at Glen Alpine, going direct to the W. D. Pitts’ store, where he got cartridges. We find him, admittedly, at the place of the killing that night, accompanied by one or both of the Pitts boys. After the killing we find him claiming to have run to the end of the train trying to get on it, and then coming back with two drummers to the entrance where the body was lying, and getting on the train at the same time that they did; yet we find one of these drummers, J. P. Stafford, testifying that he was not with them when they got on, and that he would have known it if he had been. We find him later, after he had been subpoenaed as a witness for the State, at the trial of the Pitts boys, refusing to appear and testify until after he was arrested under a capias. We find him after he was arrested and in jail telling Mr. F. A. Green, ‘I want you to phone for Bud Pitts (W. D. Pitts) to come down here at once.’ ”
This enumeration shows the straits to which the State is reduced to furnish evidence of a conspiracy.
If we eliminate “Yet we find,” “so anxious,” which are but the inferences of counsel, the statement that the defendant was at the station, “accompanied by one or both of the Pitts boys,” which has nothing to sustain it except evidence that all were at the station, and the circumstances of having pistols at Marion, claiming to have run to the end of the train to get on when others testified he did not do so, and failing to appear as a witness against the Pitts boys, which may tend to show guilt, but not a conspiracy, we have nothing except that six or eight weeks before the killing the defendant said he was going to see W. D. Pitts, and if he missed his train he would hire an automobile; that on the evening of the killing he went to the Pitts store and bought cartridges; that he stayed awhile by the fire; that he left and went to the depot; that Garfield and Aaron Pitts were at the depot, as were four or five others, and *804that after his arrest he asked some one to phone for W. D. (Bud) Pitts; and there must be still further elimination of circumstances, because W. D. Pitts lived a mile from Cien Alpine, and there is no evidence that he was in the town the evening of the killing or that the defendant saw him.
The evidence of a conspiracy then comes to this, that the defendant went to the Pitts store and bought cartridges; that he stayed some time by the fire because the train was late, and there was no fire at the depot; that he left the store to take his train; that Aaron and Garfield Pitts also went to the train, and upon this he is told that if Aaron or Garfield or both killed Dr. Hennessee he must suffer electrocution.
Upon the same theory I do not see how the two drummers, who took the train at Glen Alpine that night, have escaped as they were doubtless in the Pitts store, and they were at the train with Garfield and Aaron Pitts.
As I understand the record, the instruction is erroneous, because there was not only no -evidence to support it, but the circumstances rebut the idea of a conspiracy. The visit to W. D. Pitts six or eight weeks before is fully explained, but without explanation nothing criminal is shown, and the fact that the defendant was proclaiming that he must see Pitts that night; that he sat openly in the Pitts store on the evening of the killing,, tend to show that there was no conspiracy.
Again his Honor charged the jury: “With the instructions given, if you are satisfied beyond a reasonable doubt of the guilt of the prisoner as contended for by the State, your verdict will be ‘guilty of murder in the first degree, as charged in the bill of indictment.’ But, on the contrary, if you have a reasonable doubt of the guilt of the prisoner, upon all of the evidence, your verdict will be ‘not guilty,’ ” to which the defendant excepted, thus preventing the jury from considering murder in the second degree, and this is error if there is evidence of murder in the second degree.
“Where the evidence tends to prove that a murder was done, and that it was done by means of poison, lying in wait, imprisonment, starving, torture, or which has been committed in perpetration, or attempt to perpetrate, any arson, rape, robbery, burglary, or other felony, and where there is no evidence, and wheré no inference can fairly be deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of ‘guilty of murder in the first degree,’ if they are satisfied beyond a reasonable doubt, or of ‘not guilty.’ If, however, there is any evidence, or if any inference can be fairly deduced therefrom tending to show one of the lower grades of murder, it is then the duty of the trial judge, under appropriate instructions, to submit that view to *805the jury. It becomes the duty of the trial judge to determine, in the Erst instance, if there is any evidence or if any inference can fairly be deduced therefrom, tending to prove one of the lower grades of murder. This does not mean any fanciful inference tending to prove one of the lower grades of murder; but, considering the evidence ‘in the best light’ for the prisoner, can the inference of murder in the second degree or manslaughter be fairly deduced therefrom.” S. v. Spivey, 151 N. C., 685.
The question is not whether there is evidence of murder in the first degree, which I concede, but is there any evidence of murder in the second degree, and this depends on whether, “considering the evidence in the best light for the defendant,” the inference can be fairly deduced that the murder was not done by one “lying in wait,” or stated, perhaps, more accurately, is there any inference that can reasonably be drawn from the evidence except that the person who killed Dr. Hennessee was “lying in wait,” which, “ ‘according to Bouvier, is being in ambush for the purpose of murdering another. It implies a hiding or secreting of one’s self.’ State v. Olds, 24 Pac., 394, 403; 19 Or., 397.
“To constitute lying in wait, within the meaning of Acts 1829, ch. 23, par. 1, providing that all murder perpetrated by means of lying in wait shall be murder in the first degree, three things must concur, to wit, waiting, watching, and secrecy. Riley v. State, 28 Tenn. (9 Humph.), 646, 651.” 5 Words & Phrases, 4262.
Assuming for the present that the defendant killed the deceased, the evidence is that he bought a railroad ticket at 5 :30 o’clock, thus giving notice that he might be expected at the train; that he was standing “in the open,” so that two persons on the train, Ramsey and Amos, saw him; that Sam Byrd, Jasper Reap, and Garfield and Aaron Pitts, Stafford and Kelly, were within twenty feet of him; Sumner, the conductor, and Patton, the railroad agent, within ninety feet; Laughter, the flagman, within thirty feet, and that Dr. Hennessee, Lum Branch, Miss Trexler, and Miss Smathers left the train during the shooting within fifteen feet of him.
It also appears that it was only “deep twilight,” and Ramsey, the principal witness for the State, says: “I could tell perfectly well what was taking place on the outside.”
If the only inference from this evidence is a killing by “lying in wait,” I have no conception of the term, and if there is any other inference the defendant is entitled to a new trial.
Again, his Honor charged in reference to motive: “With regard to the question of motive for the commission of crime, the court further instructs you that if the evidence in this case fails to show the prisoner’s motive for killing the deceased, this is a circumstance in his favor, which *806the jury should consider along with the other evidence; but if the jury finds from all the evidence, direct and circumstantial, that the prisoner committed the crime charged, the jury are at liberty to find the prisoner guilty, whether any motive was apparent or not, because, while motive in the commission of a crime is a material element for a jury in considering it, yet if it is shown beyond a reasonable doubt that the crime was committed, it is not indispensable that the motive should be apparent to sustain a conviction.”
This is objectionable in two aspects. In the first place it leaves the question of motive to the jury, when no one contends there is any evidence of motive, and the defendant was entitled to have the court so instruct the jury, and in the next place it is very close to an expression of opinion that the defendant killed the deceased.
What did the jury understand when his Honor said “if the evidence in this case fails to show the prisoner’s motive for killing the deceased” except that he thought the prisoner killed him %
There are several statements made while stating the contentions of the parties, which, while they may not be ground for a new trial, because not called to the attention of the judge at the time, were very harmful.
He said the State contended that Amos was corroborated by the evidence of Joe Tallent; that Amos “told him that he recognized the man who was firing two pistols on the night of the tragedy,” when Joe Tallent made no such statement, and Amos said, “I was in a conversation with a man named Tallent. I said that I was on the train that night; know I said that much. That’s about all I thought I told him; that’s all I recall now.”
The importance of this will be recognized when it is remembered that Amos was the most material witness for the State, and that he was sadly in need of corroboration.
He also stated as a corroborating circumstance: “The testimony further of the prisoner’s witness,’Dr. T. Y. Goode, whose examination of the wounds indicated that the greater part of them were fired at close range, and that most of them were probably fired by one person holding two pistols, or by two persons standing near to each other,” when you will search in vain for such a statement by Dr. Goode. This was material, because it was the beginning of the effort to connect the defendant with some other person. He further said: “The State further contends that all the material evidence, including that of Ramsey, Amos, Me-Sherry, and M. N. Hennessee, for the State, and that of Miss Ellen Trexler for the prisoner, tends to show that one person engaged in the assault of the deceased wore a dark brown or tan overcoat or raincoat, and that the only person at all about the station at Glen Alpine at that time of the tragedy who wore a coat of such description was the prisoner *807now on trial, and tbe State contends tbat from this evidence tbe jury ought not to entertain a reasonable doubt as to tbe identity and guilt of tbe prisoner now on trial.”
Mr. N. Hennessee was not at tbe station; did not see tbe man wbo shot, and did not testify tbat “one person engaged in tbe assaulting” of tbe deceased wore a dark brown or tan overcoat or raincoat, and Miss Trexler testified: “One was wearing a long black slicker or raincoat.”
For these reasons I tbink there ought to be a new trial in tbe interest of human life.
BeowN, J., concurs in this opinion.