dissenting: The judge charged the jury as follows: “The court instructs you that you, under this evidence in the event you agree unanimously, can return one of two possible verdicts, and none other. You may, if you are satisfied beyond a reasonable doubt, return a verdict ... of murder in the first degree. If not so satisfied, then you would return a verdict of not guilty. Those are the only two possible verdicts arising in this case. . . . The court instructs you as a matter of law from a careful inspection of the evidence as the court listened to it that there is no deduction therefrom which would warrant you beyond a reasonable doubt to convict the prisoner of any offense other than murder in the first degree. . . . The court instructs you, therefore, that there are only two verdicts that you can render.”
C. S., 4640, provides: “Upon the trial of any indictment the prisoner may be convicted of crime charged therein or of a less degree of the same crime,” etc. The pertinent doctrine now prevailing and fortified by a host of decisions is as follows: “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 *682in the perpetration or attempt to perpetrate any arson, rape, robbery,, burglary, or other felony, and where there is no evidence and where no inference can be fairly 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. . . 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 the jury. . . . When, however, the State relies upon evidence tending to show not only that the murder was perpetrated by one of the means specified in the statute, or that it was committed in the perpetration of or attempt to perpetrate a felony as defined in the statute, but also upon evidence tending to show deliberation and premeditation, the jury should be instructed that if they fail to find from the evidence, beyond a reasonable doubt, that the murder was perpetrated by one of the means specified in the statute, or that it was committed in the perpetration of or attempt to perpetrate a felony, and further fail to find from the evidence, beyond a reasonable doubt, that it was committed after deliberation and premeditation, they should return a verdict of guilty of murder in the second degree, provided, of course, they shall find from the evidence, beyond a reasonable doubt, that the defendant committed the murder. ... In such case, under the statute as construed by this court, it is for the jury and not the judge to find the fact of deliberation and premeditation, from the evidence, and beyond a reasonable doubt.” S. v. Newsome, 195 N. C., 552.
The wife of the deceased testified that she heard her husband drive his truck in the yard immediately before the killing. She said: “I listened for Grus to come in. He didn’t, and I thought he had gone on back of the house. Still he didn’t come in, and I heard voices shouting and holloing. I can’t say how many voices I heard shouting, just like people shouting to each other—angry voices. They seemed to be like close to the house when I first heard them and they got like they were moving off. The next thing I heard was two shots.”
The only eye-witness offered by the State was Felix Whitener. He was repairing his car in the moonlight near the house of the deceased and heard the defendant’s voice. He said: “It seemed they were plumb together, kind of in a tussle. I stood there and watched. . . . The tallest and heaviest man walked off that way, and first thing I seen a man raise up there and the other man was close to the center of the road. . . . The man got up here at the mail box and the other man . . . was over the road moving toward Yaldese, and then a *683voice . . . said, ‘Don’t follow me,’ and tben looked like be might have been ten feet further, and he said, ‘Don’t follow me.’ The third time he said, ‘We told you not to follow us.’ . . . Immediately after that a pistol fired twice,” etc.
What was the tussle about? What was the occasion of the angry voices “shouting and holloing?” What was the meaning of the commands of one of the men present for three times: “Do< not follow us, or stop following us?” To whom were these commands given? Was the party “following” armed or not? If the deceased was the party “following” and was shot by the defendant because of such pursuit, was the killing done with premeditation and deliberation? All of these matters are left in fog by the evidence. In the Newsome case, supra, when the defendant killed the girl to keep her from telling her father, the question as to whether such killing was done with deliberation and premeditation was left to the jury and a new trial awarded. I am of the opinion that the evidence in the present case calls for the application of C. S., 4640, more loudly and with more insistent voice than in the Newsome case.
Manifestly, there was sufficient evidence of statutory murder in the first degree to be submitted to the jury; but an examination of the evidence leads me to the conclusion the trial judge should have submitted murder in the second degree also. I do not think it can be said as a cold matter of law that only one inference could be drawn from the evident struggling, shouting, holloing, and pursuit that took place at the time of the killing.
SgheNCK, L,dissenting: The trial judge charged the jury as follows : “The State must satisfy you by the evidence in this case, beyond a reasonable doubt, of the guilt of the defendant before you will be justified in returning a verdict of not guilty. As to the term ‘reasonable doubt,’ that does not mean that you must be satisfied beyond all doubt, nor beyond any doubt, nor satisfied beyond a doubt; it means that you must be satisfied beyond a reasonable doubt, or fully satisfied, satisfied to a moral certainty of the guilt of the defendant from the evidence or lack of evidence in the case.” I think this instruction was prejudicial error, especially so in the light of the fact that the principal defense relied upon by the defendant was that of an alibi.
The State’s evidence tended to show the defendant at the scene at the time of the homicide, the defendant’s evidence tended to show him elsewhere, and the jury, under the charge, might well have determined this vital issue of fact adverse to the defendant “for the lack of .evidence,” that is, for the lack of more convincing evidence of an alibi. The burden is never upon the defendant to establish an alibi. The burden, *684even when an alibi is set up, remains upon tbe State, S. v. Josey, 64 N. C., 56, to establish by the evidence, not the lack of it, beyond a reasonable doubt that the defendant was present and perpetrated the crime.
Nor is this error cured, in my opinion, by considering' the entire charge contextually. The instruction that the jury must be satisfied beyond a reasonable doubt of the defendant’s guilt “from the evidence or lack of evidence” is incompatible with the instruction given elsewhere in the charge to the effect that the jury must be satisfied beyond a reasonable doubt from all of the evidence of such guilt, and the jury was not enlightened as to which instruction to follow.
I cannot get the consent of my mind to affirm a judgment of death pronounced upon a verdict that may have been reached “from the . . . lack of evidence.”
I feel reasonably certain that the words “or lack of evidence” are due either to an inadvertence of the learned judge who tried the case or to a stenographic error, but since they appear in the case settled on appeal, “we are bound by the record; it imports verity.” S. v. Brown, ante, 156.