ClaeK, C. J.
Our statute of 1892, now Bev., 3361, provides: “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree.”
It has been repeatedly held by this Court that the deliberation and premeditation need not be of any perceptible length of time. S. v. Jones, 145 N. C., 466; S. v. Banks, 143 N. C., 652; S. v. Daniel, 139 N. C., 549.
“It is not essential in order to show prima facie premeditation on the part of the prisoner that there should be evidence of preconceived purpose to kill formed at a time anterior to the meeting when it was carried into execution. It is sufficient if the prisoner deliberately determined to kill before inflicting the mortal wound. If there were such purpose deliberately formed the interval, if only a moment, before its execution is immaterial.” S. v. McCormack, 116 N. C., 1033, where it is also said, approving Kerr on Homicide, sec. 72: “The question [781] whether there has been deliberation is not ordinarily capable o£ actual proof, but must be determined by the jury from the circumstances. It has been said that an act is done with deliberation, however long or short a time intervenes after the intent is formed and' before it is executed, if the offender has an opportunity to recollect the offense.”
In S. v. Booker, 123 N. C., 713, there was evidence which, in the language of the Court, “tended to show that the prisoner went to the home of the deceased on the morning of the day she was killed and got some black pepper; that he went off, and came back in about an hour with a gun and without provocation shot the deceased in the back of the head, killing her instantly.” The Court in that case adopted the words of the Court in People v. Conray, 97 N. Y., 72: “We are of the opinion that the jury was justified in inferring from the facts and circumstances proved that the death of the deceased was the result of deliberation and premeditation.”
In S. v. Adams, 138 N. C., 697, the husband of the murdered woman on his return home found his wife dead in the cotton field near the house with her skull crushed. There was evidence in that ease, as in this, of the prisoner’s tracks leading to and from the dead body. The Court said: “Murder may be committed without any motive. It is the intention deliberately formed, after premeditation, so that it becomes a definite purpose to kill. And a consequent killing without legal provocation or excuse constitutes murder in the first degree. The existence of a motive may be evidence to show the degree of the offense, or to establish the identity of the defendant as the slayer, but motive is not an essential, nor is it indispensable to a conviction of the person charged with its commission. S. v. Wilcox, 132 N. C., 1143; S. v. Adams, 136 N. C., 620.”
In S. v. Banks, 143 N. C., 652, the Court reiterates the repeated decisions of this Court as follows: “No particular time is necessary to constitute premeditation and deliberation for the conviction of murder in the first degree under the statute, and if the purpose to kill has been deliberately formed, the interval which'elapses before its execution is immaterial.”
In this case, there is evidence that the deceased was walking along the road in front of the wagon driven by the prisoner; that he stopped his wagon, which stood idle for about an hour; that during that time a woman was heard screaming where the body was found, and at the end of that time he was seen returning from that direction; that tracks leading to and from that direction and also near the body were identified as fitting the prisoner’s shoes; that the victim’s throat was cut from ear-to ear, her head bruised up, her nose broken in and a knot on a club nearby had blood on it and fitted the indentation on her nose; [782] that the prisoner was known to have a knife and. the grass showed that a knife had been wiped upon a bunch of it. There were indications that the body had been dragged through the bushes and that leaves and grass had been bent down; and that buds and leaves from the trees had been pulled off as if some one had wiped his hands; when a party went to arrest the prisoner, he whipped up his team and endeavored to escape, and finally jumped off his wagon and ran through the woods. Under extradition proceedings officers were sent who found him in Virginia. Seeing the party approaching the prisoner again fled and when overtaken was up a tall tree. When he came down before any charge was made, the prisoner said, “You have come to arrest me for killing that woman,” and denied it.
The evidence, is circumstantial. It was for the jury to say whether the prisoner committed the homicide. There was evidence from the above testimony, taken in connection with the disordered state of the dress of the victim, that the homicide might have been committed in an attempt to rape which would make it murder in the first degree. There was an absence of any altercation or quarrel which might point to a killing with malice and without deliberate intent to kill. The manner of the.killing, cutting the throat from ear to ear, the beating up of the head and the breaking in of the nose would indicate, or at least was evidence from which the jury could infer that the killing was not merely from malice (which would make it murder in the second degree), but was a deliberate intent to kill in order to conceal his crime or his intent to commit crime, against the person of the victim. These were matters for the jury. -
In Hill v. Commonwealth, 2 Grattan (Va.), 594, it is held: “Where a homicide is proven, the presumption is murder in the second degree. If the Commonwealth would elevate it to murder in the first degree, it must furnish evidence to justify such finding, and if the prisoner would reduce it to manslaughter, the burden of proof is on him. A man shall be taken to intend that which he does, or which is the immediate or necessary consequence of his act. A mortal wound given with a deadly weapon, in the previous possession of the slayer, with-' out any or upon very slight provocation, is prima facie willful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances. This is quoted and followed in Longley v. Commonwealth, 99 Va. (December, 1900), 807, and is also quoted and followed in S. v. Welsh, 36 W. Va., 690, and the same doctrine is well established in other Courts. There could hardly have been any provocation to cause the beating up a woman and cutting her throat from ear to ear but the deliberate intent to kill.
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ClaeK, C. J.
Our statute of 1892, now Bev., 3361, provides: “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree.”
It has been repeatedly held by this Court that the deliberation and premeditation need not be of any perceptible length of time. S. v. Jones, 145 N. C., 466; S. v. Banks, 143 N. C., 652; S. v. Daniel, 139 N. C., 549.
“It is not essential in order to show prima facie premeditation on the part of the prisoner that there should be evidence of preconceived purpose to kill formed at a time anterior to the meeting when it was carried into execution. It is sufficient if the prisoner deliberately determined to kill before inflicting the mortal wound. If there were such purpose deliberately formed the interval, if only a moment, before its execution is immaterial.” S. v. McCormack, 116 N. C., 1033, where it is also said, approving Kerr on Homicide, sec. 72: “The question [781] whether there has been deliberation is not ordinarily capable o£ actual proof, but must be determined by the jury from the circumstances. It has been said that an act is done with deliberation, however long or short a time intervenes after the intent is formed and' before it is executed, if the offender has an opportunity to recollect the offense.”
In S. v. Booker, 123 N. C., 713, there was evidence which, in the language of the Court, “tended to show that the prisoner went to the home of the deceased on the morning of the day she was killed and got some black pepper; that he went off, and came back in about an hour with a gun and without provocation shot the deceased in the back of the head, killing her instantly.” The Court in that case adopted the words of the Court in People v. Conray, 97 N. Y., 72: “We are of the opinion that the jury was justified in inferring from the facts and circumstances proved that the death of the deceased was the result of deliberation and premeditation.”
In S. v. Adams, 138 N. C., 697, the husband of the murdered woman on his return home found his wife dead in the cotton field near the house with her skull crushed. There was evidence in that ease, as in this, of the prisoner’s tracks leading to and from the dead body. The Court said: “Murder may be committed without any motive. It is the intention deliberately formed, after premeditation, so that it becomes a definite purpose to kill. And a consequent killing without legal provocation or excuse constitutes murder in the first degree. The existence of a motive may be evidence to show the degree of the offense, or to establish the identity of the defendant as the slayer, but motive is not an essential, nor is it indispensable to a conviction of the person charged with its commission. S. v. Wilcox, 132 N. C., 1143; S. v. Adams, 136 N. C., 620.”
In S. v. Banks, 143 N. C., 652, the Court reiterates the repeated decisions of this Court as follows: “No particular time is necessary to constitute premeditation and deliberation for the conviction of murder in the first degree under the statute, and if the purpose to kill has been deliberately formed, the interval which'elapses before its execution is immaterial.”
In this case, there is evidence that the deceased was walking along the road in front of the wagon driven by the prisoner; that he stopped his wagon, which stood idle for about an hour; that during that time a woman was heard screaming where the body was found, and at the end of that time he was seen returning from that direction; that tracks leading to and from that direction and also near the body were identified as fitting the prisoner’s shoes; that the victim’s throat was cut from ear-to ear, her head bruised up, her nose broken in and a knot on a club nearby had blood on it and fitted the indentation on her nose; [782] that the prisoner was known to have a knife and. the grass showed that a knife had been wiped upon a bunch of it. There were indications that the body had been dragged through the bushes and that leaves and grass had been bent down; and that buds and leaves from the trees had been pulled off as if some one had wiped his hands; when a party went to arrest the prisoner, he whipped up his team and endeavored to escape, and finally jumped off his wagon and ran through the woods. Under extradition proceedings officers were sent who found him in Virginia. Seeing the party approaching the prisoner again fled and when overtaken was up a tall tree. When he came down before any charge was made, the prisoner said, “You have come to arrest me for killing that woman,” and denied it.
The evidence, is circumstantial. It was for the jury to say whether the prisoner committed the homicide. There was evidence from the above testimony, taken in connection with the disordered state of the dress of the victim, that the homicide might have been committed in an attempt to rape which would make it murder in the first degree. There was an absence of any altercation or quarrel which might point to a killing with malice and without deliberate intent to kill. The manner of the.killing, cutting the throat from ear to ear, the beating up of the head and the breaking in of the nose would indicate, or at least was evidence from which the jury could infer that the killing was not merely from malice (which would make it murder in the second degree), but was a deliberate intent to kill in order to conceal his crime or his intent to commit crime, against the person of the victim. These were matters for the jury. -
In Hill v. Commonwealth, 2 Grattan (Va.), 594, it is held: “Where a homicide is proven, the presumption is murder in the second degree. If the Commonwealth would elevate it to murder in the first degree, it must furnish evidence to justify such finding, and if the prisoner would reduce it to manslaughter, the burden of proof is on him. A man shall be taken to intend that which he does, or which is the immediate or necessary consequence of his act. A mortal wound given with a deadly weapon, in the previous possession of the slayer, with-' out any or upon very slight provocation, is prima facie willful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances. This is quoted and followed in Longley v. Commonwealth, 99 Va. (December, 1900), 807, and is also quoted and followed in S. v. Welsh, 36 W. Va., 690, and the same doctrine is well established in other Courts. There could hardly have been any provocation to cause the beating up a woman and cutting her throat from ear to ear but the deliberate intent to kill.
[783] If this evidence satisfied the jury that the prisoner committed the homicide, the attendant circumstances of the killing by cutting her throat from ear to ear, beating up her head, and breaking her nose with a club, the wiping of the knife-blade in the grass and the hands with buds and leaves, if believed, was evidence from which the jury could infer that the killing was deliberate and purposeful, and not a sudden access of rage and such premeditation, if only for a moment, is sufficient to make it murder in the first degree. Certainly the judge could not tell the jury, without invading their province, that there was no evidence of murder in the first degree. It is stated that the charge defined the difference between murder in the first degree and in the second degree, and that there was no exception to it in any respect except in leaving the jury to pass upon the evidence as to murder in the first degree.
Formerly the defendant in a criminal proceeding was not allowed to go upon the stand in his own defense. But under our act of 1881, now Code, 1634, “The person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him.” This latter clause is omitted from the statute in England and in most of our States, in which failure of defendant to testify in a criminal action raises a pre-' sumption against him as in a civil action.
If the prisoner could have given testimony to acquit himself of this charge or to reduce it to a lesser degree of homicide, it is unfortunate that he did not go upon the stand to give the jury the benefit of his testimony. His failure to do so did not create any presumption against him and the judge must have so charged the jury, for it is stated that the charge was unexceptionable in every other respect. than in permitting the jury to consider the evidence in the light of murder in the first degree. The fact that he did not testify was a circumstance, like the bearing of a witness on the stand, or other conduct in the trial, which though not a matter of evidence (for it was a matter in the observation of the jury) may have had some weight with the jury as to the nature of the transaction of which there was no eye-witness, unless the prisoner was such. Whether he was or not he alone could testify.
The existence of premeditation and deliberation is for the jury, not for the court, if there is any evidence, and it may be inferred from the manner of the killing and the use of the weapon whether the slaying was deliberately done or in a transport of passion. S. v. Daniel, 139 N. C., 549.
Whether certain evidence shows premeditation and deliberation is a fact to be found by the jury, and not a conclusion of law to be drawn [784] by tbe court. S. v. Daniels, 134 N. C., 676, citing S. v. Freeman, 122 N. C., 1012.
Tbe conviction of tbe prisoner of tbe homicide is largely due to bis being near tbe spot at tbe time, tbe identification of bis tracks, tbe outcry' of tbe woman and tbe prisoner’s flight. When tbe jury found tbe prisoner to be tbe slayer, tbe manner in 'which be used the knife and club and tbe absence of previous acquaintanceship and tbe cries of tbe woman were competent for tbe jury to consider on tbe question whether there was a deliberate intent to kill.
No error.