dissenting: The defendant, at the October Term, 1935, of Hertford Superior Court, was convicted of murder in the first degree and appealed to the Supreme Court. The defendant was granted a new trial on the ground that there was evidence to warrant a verdict of murder in the second degree, and the question should have been submitted to the jury on this aspect. S. v. Perry, 209 N. C., 604.
The facts are fully set forth in my dissenting opinion in the former appeal.
The defendant was again tried and convicted of murder in the first degree. In the main opinion a new trial is again granted him.
I think, under the Constitution and the statute law of this State applicable, that the witness Joseph Terry was a competent witness against defendant, and was compelled to testify against him subject to his right to refuse to answer any question tending to criminate himself. In cases where defendants are indicted for affrays in the same bill of indictment, this practice has been approved since “Time whereof the memory of man runneth not to the contrary.” The solicitors of the *799State have universally put defendants on the stand and compelled them to testify, subject to their right to refuse to answer any questions tending to criminate themselves. Joseph Terry was subpoenaed as a witness for the State, his attorney made a motion not to put him on the stand as a witness. The objection was overruled. The court below duly informed Joseph Terry of his rights under the Constitution: “You may refuse to answer any question that in your judgment might tend to criminate you. You understand what I mean. When the solicitor asks you a question and in your judgment you think it would tend to criminate you, you need not answer it.”
Const, of N. C., Art. I, sec. 11, is as follows: “In all criminal prosecutions every man has the right to be informed of the accusation against him and to confront the accusers and witnesses with other testimony, and to have counsel for his defense, and not be compelled to give evidence against himself, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.”
N. C. Code, 1935 (Miehie), sec. 1799, is as follows: “In the trial of all indictments, complaints, or other proceedings against persons charged with the commission of crimes, offenses, or misdemeanors, the person so charged is, at his own request, but not otherwise, a competent witness, and his failure to make such request shall not create any presumption against him. But every such person examined as a ¡witness shall be subject to cross-examination as other witnesses. Except as above provided, nothing in this section shall render any person who, in any criminal proceeding, is charged with the commission of a criminal offense, competent or compellable to give evidence against himself, nor render any person compellable to answer any question tending to criminate himself.”
Under section 1792, a witness, with the exception of attesting witnesses to wills, is not excluded by interest or crime. Section 1793 makes parties competent and compellable to give evidence with exception of actions in consequence of adultery and criminal conversation. A defendant in a criminal case is competent and compellable to testify for or against a codefendant, provided his testimony does not criminate himself. S. v. Smith, 86 N. C., 705; S. v. Medley, 178 N. C., 710. In an indictment for an affray, it is not error for the presiding judge to caution the witness (a defendant), before the counsel for the other defendant cross-examines him, that he need not tell anything to criminate himself. S. v. Ludwick, 61 N. C., 401; S. v. Rose, 61 N. C., 406; S. v. Smith, 86 N. C., 705; S. v. Weaver, 93 N. C., 595 (600). N. C. Code, 1935 (Miehie), secs. 1794, 1795, 1801, and 1802.
N. C. Code, supra, sec. 978: “Any person guilty of any of the following acts may be punished for contempt: (6) The contumacious and *800unlawful refusal of any person to be sworn as a witness, or, when so sworn, the like refusal to answer any legal and proper interrogation.”
In S. v. Simpson, 9 N. C., 580 (581), speaking to the subject, it is said: “It is clearly established that a witness cannot be compelled to answer any question tending to render him the subject of a criminal accusation; nor to answer interrogations having a direct tendency to subject him to penalties; or having such a connection with them as to form a step towards it.”
In LaFontaine v. Southern Underwriters, 83 N. C., 132 (139), is the following: “In the trial of Burr, Chief Justice Marshall lays down the rule, which most of the text writers adopt, as the correct, practical rule, in these words: 'It is the province of the court to judge whether any direct answer to the question that may be proposed will furnish evidence against the witness. If such answer may disclose a fact, which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction. In such case the witness must himself judge what his answer will be, and if he says on his oath he cannot answer without accusing himself, he cannot be compelled to answer.’ Whether it (the answer) may tend to criminate or expose the witness is a point which the court will determine under all the circumstances of the casé. 1 Greenl. Ev., sec. 451. And the same view is taken in Eos. Or. Ev. and in other authorities.” S. v. Hollingsworth, 191 N. C., 595.
On cross-examination, the witness Joseph Terry refused to answer as to the ownership of the gun and where he kept it, and whether he had one and where he had been at a certain time. The defendant cites no authority in his brief to sustain his position, but says: “These exceptions cover the proposition that the witness was permitted to testify to the facts favorable to the State, but the defendant was denied the right to cross-examine him to bring out evidence to impeach him, to contradict him, and to produce from him evidence favorable to the defendant. Surely this is reversible error.”
I hardly see how the refusal of Terry to answer the question is prejudicial, if error. The refusal to answer would no doubt make a favorable impression in behalf of defendant. But, be that as it may, Terry was subpoenaed and bound to attend and give evidence. N. C. Code, 1935 (Michie), sec. 1807, is as follows: “Every witness, being summoned to appear in any of the said courts, in manner before directed, shall appear accordingly, and continue to attend from term to term until discharged. . . . Or, when summoned in a criminal prosecution, until discharged by the court, the prosecuting officer, or the party *801at whose instance he was summoned; . . . or, if summoned in a criminal prosecution, shall forfeit and pay eighty dollars for the use of the State, or the party summoning him,” etc.
In S. v. Smith, 86 N. C., 705, the indictment was jointly against one Green and defendant for an affray. Ashe, J., at p. 707, has this to say: “It does not repeal or affect in any manner the provisions of that section by which a defendant in a criminal action is made competent and compellable to testify for or against a eodefendant, provided his testimony does not criminate himself. The defendant Green, then, was a competent witness against his codefendant Smith, and Smith against Green.”
In S. v. Medley, 178 N. C., 710, at p. 712, Hoke, J., says: “Under section 1634, in all indictments, complaints, or other proceedings against persons charged with crimes, etc., the person so charged shall, at his own request and not otherwise, be a competent witness, etc. And in section 1635 it is provided that nothing in the preceding section (1634) shall render any person charged with a criminal offense competent ór com-pellative to give evidence against himself, nor shall render any person compellative to answer any question tending to criminate himself, etc., etc. Construing these and other sections appertaining to the subject, it has been held that on trial for crime any defendant is competent and compellable to testify for or against a codefendant, provided he is not compellable to give evidence that may tend to convict him, either of the crime charged or other offense against the criminal lato. S. v. Smith, 86 N. C., 705.” (Italics mine.)
In the present case, the jury has convicted defendant of murder in the first degree of a most atrocious crime. He had taken the dead man’s wife and had been indicted, convicted, and imprisoned for fornication and adultery with her. He made threats, time and time again, against the life of the deceased, who was shot from behind. A piece of his skull was found in the other room, blood was spattered upon the wall, bits of hair, flesh, and blood were on the ceiling. Defendant was found on the day after the night of the killing, lying on the bed in his home in his bloody clothes, bits of flesh and pieces of hair were on the apron of his overalls. His paramour, the deceased’s wife, was with him on the bed.
On the whole record, I see no prejudicial or reversible error, and respectfully dissent from the main opinion.