dissenting: Error in the trial below* is conceded. The majority are of the opinion the errors committed are not of sufficient moment to require a new trial. I regret to find myself in disagreement. Yet, after careful study of the record I am forced to the conclusion that the errors to which reference is made in the majority opinion, as well as others not mentioned, were sufficiently prejudicial to the defendant to require a new trial.
The testimony in the case presents this picture:
The defendant, a man about thirty-seven years of age, is addicted to the use of liquor, xkt times he would get on a spree. He was then disagreeable, quickly irritated, and rough in manner and conduct, abusing and assaulting his wife. She would leave him and return after he sobered up. While they were separated their relations seemed to be pleasant. She would go to his house, and he would visit the home in which she was staying, and they consulted each other about matters of mutual interest. They separated for the last time sometime prior to the homicide. During the week preceding the homicide, he went to Georgia. Before leaving, he sent her $100, gave her the name of the hotel at which he would stop, and told her to get in touch with him if she needed him. When he returned, he learned she had gone to Duke, and he called to inquire about her condition. When told she was at Duke, he said that if she was sick he hoped she would get well, and also said, as a part of the same statement, that he wished that she was dead, wished that he could wake up in the morning and hear that she was dead, that that would be the sweetest music he had ever heard. He had been drinking at the time.
On the night of the homicide he went to the home where she was staying and talked to her and the members of the household in a pleasant manner. He and deceased discussed her trip to Duke, and she told him about the X-ray photographs which were taken. He offered those present *676some whisky and some peaches. When he got ready to leave, he asked her if she was going with him. When she said no, he flew into a rage and told her she could see his lawyer the next day. He left, drank more liquor, and returned. When he entered the house he had his gun, which he usually carried in his car, with him. The members of the family went into the middle bedroom, and Mrs. Elsie Mae Creech, Johnnie Grimes, and the deceased held the door to keep him from entering. The deceased was crouched down low' with the right side of her head and her right shoulder against the middle of the door. He tried several times to shove the door open. Failing in that, he fired through the door. The load of shot struck the deceased in the right side of her head, scattering blood on the door, on Mrs. Elsie Creech, on the floor, and on the bed to the rear. Deceased immediately slumped down on the floor and never moved. Later she wras examined by Johnnie Grimes. Her body vras then lifeless. “I would say she was dead.”
After the first shot was fired, the family ran out. Defendant went on the back porch and called Johnnie Grimes several times. ITe also went out in the back yard. He then, some minutes later, went into the room where the body was lying, turned on the light, pointed his gun in the direction of the body and fired. Whether this load struck the body of deceased is not made to appear. He then left and later surrendered to the sheriff.
The homicide was committed on the night of July 28. The defendant, on August 11, in a preliminary hearing, was committed to jail without bond. The defendant promptly served notice of intention to take the depositions of out-of-state witnesses, the hearing being set for August 21. On the morning of August 18, about noon, the Grand Jury returned a true bill. The court thereupon, of its own motion, ordered a special venire of 250 men to be drawn from the body of the citizenship of the county and set the trial for hearing on the following morning at 9 :30, at which time the defendant was put on trial for his life.
The criminal law should be promptly and efficiently enforced. This applies with particular force when a crime such as the one portrayed by this record is committed. The slaying was inexcusable and the defendant should be punished according to the degree of the crime he committed. For him I hold no brief. But the law itself demands that the life of a citizen shall not be exacted for a crime until he has first been convicted in a trial as fair and free from error as it is humanly possible to make it. S. v. Howell, 218 N. C. 280, 10 S. E. (2) 815. Being convinced, as I am, that the defendant has not been accorded that type of trial, but that instead the able and conscientious judge who presided inadvertently committed errors during the trial which of necessity must have influenced the verdict of the jury, I am compelled to register my dissent and to state, as briefly as I can, the reasons which prompt me to do so.
*677Much could be said about the disposition of the motion for continuance. The defendant was allowed less than a day in which to summon and consult witnesses and no time in which to examine the list of special veniremen. But I do not rest my dissent on that ruling. Perhaps the defendant has not brought his case within the principle that controlled decision in S. v. Farrell, 223 N. C. 321, 26 S. E. (2) 322. Even so, we must always remember that undue haste, particularly in cases of this type, will pervert justice as surely as unnecessary delay will defeat it.
The State was permitted to prove, over objection, that the defendant was engaged extensively in farming operations, was a tobacco warehouseman and the son of one of the largest farmers of the community. These facts have no bearing on the guilt or innocence of the defendant. Yet the judge considered them of such importance that he reviewed them in detail in his charge to the jury. Thus he indicated that he thought they were facts to be considered by the jury.
No doubt at least some of the jurors knew these facts, but they did not know they were facts to be considered against the defendant on the question of his guilt or innocence. Yet they were so used. A man’s wealth, position, or prominence should not avail him in a court of justice. Neither should they be used against him.
Likewise, the court permitted the State to prove that the defendant had been twice married and twice divorced before he married the deceased. These facts have no bearing whatever on the question at issue. Even so, the court gave them emphasis and importance by reviewing them in detail in his charge.
What more did an able, forceful solicitor desire than proof that defendant killed the deceased, that he was a wealthy son of a prominent citizen and had been divorced twice> with permission of the judge to use such proof in his argument ? It laid a perfect foundation for the argument that defendant now, on this fateful night, was about the business of ridding himself of a third unwanted spouse. No doubt it was so used. If it was not, then the solicitor muffed his best bet on the evidence admitted, and the fact remains that it was submitted to the jury for their consideration in the charge of the court.
The assignments of error based on the admission of evidence to which I have referred, in my opinion, require a new trial. But there are others of even more serious nature.
All the testimony tends to show that the deceased was killed by the first shot, fired through the door. There is no evidence that she was alive when defendant fired the second shot at her body some time later.
The court below, however, inadvertently did not so construe the testimony. It charged the jury in part as follows:
“The State says and contends that . . . while out on the outside of the house he turned and went back in the house and turned on the light and *678took his shotgun and aimed at the prostrate body of his wife lying upon the floor and shot her again in the head. The State says and contends that that shows a determination on his part to carry out and execute completely his previously formed plan and design to take her life.
“In that connection the Court charges you that dealing of the lethal blow after the deceased had been felled, if you find beyond a reasonable doubt she had been felled and rendered helpless and dealt such blows, is evidence from which you could infer premeditated and deliberated purpose to kill.”
In addition to the foregoing charge, the court in the statement of contentions more than once referred to the second shot as the one which might have caused death. It, in its charge on the law, instructed the jury in effect that they could find that deceased was killed by the second shot and left it to the jury to find whether it was the first or the second shot that inflicted the fatal wound, though the record is devoid of evidence tending to show that she was alive at the time the second shot was fired. Instead, it conclusively discloses that she was killed by the first shot.
Was this prejudicial? In the first place the court charged the jury that if they found that the first shot killed the deceased they should return a verdict of murder in the second degree or manslaughter. While there is a conflicting charge, this instruction renders it most probable the verdict was rendered upon the assumption that the second shot inflicted the lethal wound. Whether the second shot was deliberately fired or was the act of a person whose mind was deranged by liquor, it was a horrible, repulsive act. If his wife was at the time alive, lying helpless on the floor, it would move any juror to return a verdict of premeditated murder. On this record she was not killed then, under those circumstances. Yet the jury were led to believe they could so find from the evidence offered, and the issue was presented to them squarely and unequivocally for them to decide.
The atrocity of the defendant’s conduct in this respect was a circumstance from which opposite conclusions might be drawn—the one that it exhibited a mind fatally bent on mischief; the other, that it revealed a diseased and deranged mind. The manner in which it was submitted to the jury, as substantive evidence of a homicide deliberately committed, constitutes prejudicial and reversible error.
The deceased was killed when the defendant shot through the door. There is no evidence in the record tending to show that he knew that she was then leaning against the door. There is no direct evidence that he knew she was in the room into which he shot. These are the immediate circumstances of the slaying. lie should be tried for this homicide thus committed, in the light of all competent evidence, pro and con, on the issue of premeditation and deliberation. He should not be required to *679answer for a homicide under more atrocious circumstances which did not exist. While the second shot constitutes a fact to be considered on the question of premeditation and deliberation, it cannot, on this record, be made the basis of a finding that the homicide was then committed. Yet, under the charge of the court below the jury were permitted to so find. The record in this respect is in such condition that the conclusion the defendant was prejudiced thereby seems to me to be clear.
“The court should never give the jury instructions based upon a state of facts not presented by some reasonable view of the evidence produced on the trial, nor upon a supposed state of facts.” S. v. Wilson, 104 N. C. 868.
The theory that (1) drunkenness is no excuse for crime, (2) to avail the defendant it must be made to appear that his reason was utterly dethroned. (3) the burden of so showing rests upon him, and (4) the test is the capacity to distinguish right from wrong, permeates the whole charge without distinction between the count of murder in the second degree on the one hand, and murder in the first degree on the other.
We have said many times that voluntary drunkenness is no legal excuse for crime and that to avail the defendant he must show, the burden being on him, that his reason was dethroned to such an extent that he was incapable, at the time, of distinguishing between right and wrong. But in these cases we were discussing crimes in which premeditation and deliberation or other specific intent was not an essential element of the crime charged.
This principle, however, is not allowed to prevail where, in addition to the overt act, it is required that a definite specific intent be established as an essential feature of the crime.
This qualifying rule or exception, if it may be so termed, was first stated and applied to the charge of murder in the first degree after the adoption, in 1893, of the statute which is now G.S. 14-17, dividing murder into two degrees and making premeditation and deliberation an essential element of murder in the first degree. It is fully stated and discussed in S. v. Murphy, 157 N. C. 614, 72 S. E. 1075. It is quoted wfith approval and applied in the following cases: S. v. English, 164 N. C. 497, 80 S. E. 72; S. v. Shelton, 164 N. C. 513, 79 S. E. 883; S. v. Foster, 172 N. C. 960, 90 S. E. 785; S. v. Allen, 186 N. C. 302, 119 S. E. 504; S. v. Williams, 189 N. C. 616, 127 S. E. 675; S. v. Ross, 193 N. C. 25, 136 S. E. 193; and S. v. Alston, 210 N. C. 258, 186 S. E. 354. See also S. v. McManus, 217 N. C. 445, 8 S. E. (2) 251; 15 A. J. 30, 26 A. J. 381.
“Although drunkenness, in point of law, constitutes no excuse or justification for crime, still, when the nature and essence of a crime is made, by law, to depend upon the peculiar state and condition of the criminal’s mind at the time, and with reference to the act done, drunkenness, as a *680matter of fact, affecting such state and condition of mind, is a proper subject for consideration and inquiry by the jury.” 8. v. Allen, supra.
“Such testimony of intoxication is admitted, not as a defense, but as showing lack of an essential ingredient of the crime in question.” Smoot, Law of Insanity, 38; 1 Wharton’s Criminal Law, 12th Ed., 101, 102. It is to be considered, pro and con, on the issue of premeditation and deliberation. S. v. Hauser, 202 N. C. 738, 164 S. E. 114.
“To regard the fact of intoxication as meriting consideration in such a case is not to hold that drunkenness will excuse crime, but to inquire whether the very crime which the law defines and punishes has, in point of fact, been committed.” S. v. Allen, supra.
This modification of the common law rule has become firmly imbedded in our law, subject to this qualification: Where the evidence show's that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants to whatever extent in order to carry out the design will not avail the defendant. S. v. Foster, supra; S. v. Adams, 214 N. C. 501, 199 S. E. 716; S. v. Hairston, 222 N. C. 455, 23 S. E. (2) 885.
The court did, at one time, it is true, state the rule relating to evidence of drunkenness on the first degree count substantially as formulated in our decisions, but he coupled with that statement language which had the effect of placing the burden on the defendant to refute the charge of premeditation and deliberation by showing that “he was utterly unable to form or entertain this essential purpose.” This is emphasized by his other statements on the burden of proof.
When it is admitted or proven that the defendant intentionally killed the deceased with a deadly weapon, the presumptions arising from such proof, nothing else appearing, make the crime murder in the second degree. If the defendant would reduce the crime to manslaughter by rebutting the presumption of malice or excuse it altogether on the grounds of self-defense, insanity, or other cause, the burden is on him. Conversely, if the State would raise the crime to murder in the first degree, it has the burden of establishing the additional element of premeditation and deliberation. That burden never shifts. It remains on the State throughout the trial. S. v. Redman, 217 N. C. 483, 8 S. E. (2) 623; S. v. Harris, 223 N. C. 697, 28 S. E. (2) 232. The State is aided by the presumption of sanity, S. v. Harris, supra, but no presumption of premeditation and deliberation ever arises, whatever the defense interposed by the defendant.
“The additional elements of premeditation and deliberation, necessary to constitute the capital offense, are not presumed from a (intentional) killing with a deadly weapon. These must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree can be rendered against the defendant.” S. v. Keaton, 206 N. C. *681682, 175 S. E. 296; S. v. Davis, 214 N. C. 787, 1 S. E. (2) 104; S. v. Bedman, supra; S. v. Harris, supra. The presumption of innocence prevails until overcome by evidence of the truth of the criminal charge, and this must be such as to remove all reasonable doubt from the minds of the jury. S. v. Potts, 100 N. C. 457; S. v. Williams, supra.
When the State offers evidence of premeditation and deliberation, defendant may elect either to offer evidence in rebuttal or take the risk of an adverse verdict. S. v. Peterson, 225 N. C. 540, 35 S. E. (2) 645. Thus he may offer evidence of drunkenness to be considered by the jury on that issue, but that does not mean that the burden shifts or that he must show that “he was utterly unable to form or entertain this essential purpose.” Lie offers the evidence, not as a defense but in rebuttal, to be considered by the jury on that phase of the case.
There are, it is true, statements in some of our decisions which seem to point in the other direction. These, perhaps, misled the able trial judge. But to so hold would create two irreconcilable rules respecting the same matter. The State must prove premeditation and deliberation, but if defendant relies on drunkenness in rebuttal, he must prove that he was utterly incapable of forming a specific intent. If the State fails to prove premeditation and deliberation and the defendant fails to show incapacity to form any specific intent, what then? Is he to be convicted of the capital felony? Once you put the burden on him, that would be the only reasonable conclusion. That is to say, the State must prove premeditation and deliberation unless the defendant relies upon drunkenness. In that event, this element is conclusively presumed unless the defendant successfully rebuts it. Such is not the law.
There are other exceptions in the record which well might command consideration. Yet, if the ones I have discussed do not warrant a new trial, neither would they, and so I do not extend the discussion further.
There is evidence in the record to sustain the charge of murder in the first degree, and it may be that upon a retrial the same result will be reached. And yet, it is important that a defendant shall not suffer the penalty of death until he has been convicted in a trial in which there has been a scrupulous observance of constitutional and statutory safeguards, protecting and preserving his rights. When there is a general plea of not guilty, as here, and no admission of an unlawful killing, the death penalty should be exacted only upon the verdict of a jury which has been given full opportunity to pass upon the weight and credibility of the evidence without the injection of extraneous matter and under instructions which correctly apply the pertinent principles of law. S. v. Howell, supra. I am of the opinion that the prisoner has not been accorded that type of trial, so very essential in cases involving capital punishment. Therefore, I vote for a new trial.