The prisoner was charged with the murder of one Maxwell, and from a conviction of murder in the first degree, and the judgment thereon, appealed. The prisoner’s counsel requested several prayers for special instructions, all of which were refused. In the view we take of the case, it is unnecessary to pass upon the exceptions to his Honor’s refusal to give them. There was, besides the prisoner, but one eye-witness to the homicide. Rufus Stroud, introduced by the State, testified that he saw Maxwell alive last in the woods dipping turpentine. George Daniels shot him; he saw the prisoner standing in the path, the deceased standing by the side of a pine; the prisoner asked the deceased why he went to his house last night, and
The prisoner testified in his own behalf that he was at his tobacco barn the night before the homicide; that he left there that morning about sunup; Susan Whaley and Hannah and their children stayed with him from midnight till he left; all started to the prisoner’s house; he told Susan to prepare breakfast; the night before he had taken his gun to the tobacco barn, and as he passed by the barn, going down the path, he stopped and shot the gun; went down the path toward the Pink Hill road calling the women; had started to George Turner’s where they said they were going; was going along the path about fifty yards from the fence, saw the deceased, he was about forty yards in the woods from the road, was standing on one knee on the ground and one hand on a log; did not know he was in the woods at this point; was calling Susan and Hannah as loud as he could; some one said “What is the matter ?” Looked in the direction of the voice, and the deceased arose and said “What do you want?” he said “I want my people.” The deceased said “You shan’t have them, I will protect them.” The deceased was coming towards the prisoner with a dipping iron in his hand (a piece of flat iron twelve inches long and nearly one inch thick to a point, and handle five feet long). The deceased said that the prisoner had been talking about him; he was very mad. The prisoner said, “Will, if you don’t
There was evidence proper to be submitted to the jury to show premeditation, and, if believed by them, to justify the verdict of murder in the first degree. Hence, there was no error in the refusal of his Honor to instruct the jury as prayed by the prisoner in that respect.
The sole question therefore to be considered is whether his Honor was correct in saying to the jury that if they found the facts to be as testified by Stroud, “the prisoner is guilty of murder in the first degree, because they show premeditation and deliberation.” Whether an act is the result of premeditation and deliberation is a fact to be found by the jury, and not a conclusion of law to be drawn by the Court. In State v. McDonald, 133 N. C., 680, Mr. Justice Walker, writing for the Court, said: “When an act becomes criminal only by reason of the intent, unless the intent is proved the offense is not proved, an cl this intent must be found by the jury as a fact from the evidence. It is for them to infer, and not for the Court.” The authorities cited in the opinion fully sustain and illustrate the principle. It may be that, as an inference to be drawn by the jury, we should not hesitate to say that they came to a correct conclusion. In the light of the charge they were not permitted to draw an inference, but, upon finding the account of the homicide to be true as testified by Stroud, it became their duty, and they were required, as a conclusion of law, to find the prisoner guilty of murder in the first degree. Assuming that
Mr. Justice Douglas, writing for the Court in State v. Booker, 123 N. C., 713, said: “When the circumstances of the killing do not bring it within the classes which by the statute are made per se murder in the first degree, the State must prove deliberation and premeditation, but this may be done by circumstances and not necessarily by express and positive evidence.”
- It will be observed that the statute classifies mturder in the first degree:
1. By poisoning, lying in wait, etc.; herein the State is not required to prove premeditation, because the manner of doing the act necessarily involves premeditation. The presumption is made, by the statute, irrebutable. When committed in either of the methods mentioned, it is per se murder in the first degree. A person who lays poison for or waylays
2. In the perpetration, or attempt to perpetrate, a felony: Herein it is not necessary to show premeditation. The killing under these conditions, although without premeditation, is declared to be murder in the first degree. State v. Covington, 117 N. C., 834.
3. By wilful premeditation and deliberation: The line which separates felonious homicides committed otherwise than as defined in the foregoing classes, without premeditation, from those accompanied by the additional mental condition, called premeditation, is shadowy and difficult to fix. The law cannot safely prescribe any uniform and universal rule in regard thereto. As in questions of negligence and the like, it can only define the term and submit the question of its existence to the jury. It is well settled that the state of mind, intent, sanity, etc., is always a question of fact for the jury. The principle is well stated by the present Chief Justice in State v. Freeman, 122 N. C., 1012: “The degree of murder depends upon the facts as the jury find them to be, applying the law laid down by the Court upon that state of facts. * * * As the jury is to determine the degree of murder, it is for the jury, not the Court, to find from the evidence whether there was the premeditation which would raise the killing from murder in the second degree (presumed from the killing with a deadly weapon) to murder in the first degree.” This case comes clearly within the third class — -there was no lying in wait.”
“Whenever the degree of the offense depends upon the particular intent with which an act is done, the intent to be inferred from the circumstances is for the jury, and every fact which will throw light upon that question may be given in evidence.” Filhin v. The People, 69 N. Y., 101, 25 Am. Rep., 143.
While his Honor correctly instructed the jury in regard to the suggestion of insanity or intoxication as relieving the prisoner from responsibility, it may be that if the jury found that the homicide was committed in the manner and under the circumstances testified by Stroud, they would, if permitted to consider the entire evidence, have found in the testimony regarding the prisoner’s peculiar behavior before and after the killing, sufficient evidence to create a reasonable doubt as to the question of premeditation. They may, in this view, have reached the conclusion that while the evidence in his behalf did not rebut the presumption of malice raised by the law from the use of a deadly weapon, it did create a reasonable doubt whether the prisoner was
We concur with his Honor’s ruling upon the motion to set aside the verdict for improper conduct on the part of the father of the deceased and of some of the jurors. We are quite sure that his Honor felt, as we do, that such conduct was exceedingly improper and calculated to shake confidence in the integrity of the verdict, so far, at least, as one of the jurors was concerned. The absolute, unquestioned and unquestionable integrity of jurors in basing their verdicts upon the law and the evidence is of such vast and vital importance to suitors and people, that any conduct which casts upon it the slightest suspicion merits severe condemnation from the Courts. While the ancient custom of keeping the jury in close confinement “without meat or drink” has been abandoned, we should be careful to see to it that while empaneled, and, in a Avay, set apart from the public, to true deliverance make between the State and the prisoner, the strictest vigilance be had to protect them from suggestions or approach by interested persons. The conduct of the father of the deceased was calculated to arouse suspicion that he desired to exert some influence over some of the jurors. The Judge cannot, in the discharge of his duties, keep a jury at all times in his presence, and is directed to place them in charge of a sworn officer. It is the duty of the officer to promptly
New Trial.