State v. Covington

117 N.C. 834

Opinion

Averey, J.:

His Honor excluded from the jury the question of murder in the second degree and instructed them that in no view of the case as presented by the evidence was the prisoner guilty of murder in the second degree or manslaughter. To this the prisoner excepted. The charge is correct if there is no evidence of murder in the second degree or of manslaughter. The evidence relied upon by the State is the confession of the prisoner to the witness Josey, and circumstances detailed by other witnesses tend ing to'confirm it. Upon the truth or falsity of the confession the guilt of the prisoner entirely depends. If the confession of the homicide is a confession of murder in the first degree, and of neither manslaughter nor murder in the second degree, the charge is correct, for there is no evidence of either of these latter offences. State v. McCormac, 116 N. C., 1033.

This brings us to a consideration of the confession of the prisoner. Omitting what is immaterial and noticing only that part which goes to show deliberation and premeditation, the prisoner said “I watched my chance, and jumped on the old man and wrenched his pistol and the old man hollowed murder. Then I shot him through the body. The old man said ‘You have got me.’ I aimed to shoot him, and this must have been when I shot him in the neck, and I shot him again.” Conceding when he was watching his chance that, though deliberating and premeditating, his deliberation and premeditation were only extended to making an assault upon the deceased for the purpose of disarming him, and that his first shot was fired on the impulse of the moment because of the outcry of murder raised by the deceased, the second and third shots which were fatal ones were fired with deliberation and premeditation according to the prisoner’s confession and with the intent to kill. “I aimed to shoot him.” These words can .mean nothing else than a deliberate and premeditated attempt to shoot the deceased. To aim to shoot a person, under the circumstances detailed by the prisoner, means something more than taking aim at him with a deadly weapon. That may be done suddenly and upon the impulse of the moment. But here the words signify a purpose deliberately and premeditately formed in the mind, immediately followed by an act to execute it — the purpose to shoot the deceased, and the aiming and shooting to carry •out the purpose. Under the decisions of this Court in State v. McCormac, supra, and State v. Norwood, 115 N. C., 791, concurring with those of every other State where a similar statute concerning murder has been adopted, it is immaterial in determining the degree of murder, how soon after resolving to kill the prisoner carried his purpose into execution. The only question was, did he form and execute the purpose in the manner described in the statute? This question must be answered in the affirmative if the confession of the prisoner is to be believed ; and if the confession is not to be believed, then he is not guilty in any manner of the crime charged, as he did not commit the homicide. By their verdict the jury have shown that they believed the confession to be true. Applying the test which has been suggested in State v. Gadberry, decided at this Term, we find that had the confession of the prisoner been incorporated by the jury into a special verdict as their finding of the facts, the court would have been constrained to declare the prisoner guilty of murder in the first degree, because the intent with which the killing was done is found inseparably connected with the finding of the act of killing. So that in this view of the evidence the killing must have been premeditated, according to the only testimony that establishes the fact of shooting.

It may perhaps be claimed for the prisoner that inasmuch as the fact of killing with a deadly weapon raised only a presumption of murder in the second degree, and it was the duty of the State to prove beyond a reasonable doubt the premeditation and deliberation necessary to constitute murder in the first degree before a verdict of guilty of such crime could be rendered, the court should have left that question to the jury, and instructed them, unless they were satisfied beyond a reasonable doubt of the fact of premeditation and deliberation, to render a verdict of guilty of murder in the second degree. This would have beeh his Honor’s duty, if the fact of the homicide with a deadly weapon could have been separated from the evidence establishing it and showing the circumstances under which it took place. But it is almost impossible to conceive of a case of that character, except upon a naked confession of such homicide. The confession in this case is not simply an admission of the homicide; for the prisoner not only admits the act of killing with a deadly weapon, but gives a full and detailed account of the manner and the purpose with which it was done. Accepting the account as true, it is impossible to perceive any theory upon which the question of murder in the second degree could have been submitted to the jury, or how they could have been justified in rendering a verdict of guilty of such offence, or any other offence, than murder in the first degree. The effect of a presumption arising from a killing with a deadly weapon, admitted or proved, before the Act of 1893 was .injurious to the prisoner, and operated entirely in behalf of the State, so that the burden was upon him to show mitigation or excuse. Notwithstanding such presumption, when it appeared that, in no aspect of the testimony and under no inference fairly deducible from it, the prisoner was guilty of murder, it was error in the court to refuse to instruct the jury that they must not return a verdict for any higher offence than manslaughter. State v. Miller, 112 N. C., 878. Under such circumstances it was the duty of the Judge to exclude altogether from their consideration the question of murder, notwithstanding the presumption that such was the crime committed by the prisoner. The reason was that the evidence upon which the State relied to raise the presumption by showing a homicide with a deadly weapon at the same time had the effect to show that the offence was mitigated to manslaughter, or altogether excusable. The rule of law is the same under the present statute when the prisoner seeks to avail himself of the beneficial effects of the presumption in his behalf. Where the testimony upon which he relies to establish a homicide with a deadly weapon, in order to raise a presumption of murder in the second degree, not only proves such homicide, but has a tendency to prove murder in the first degree and under no inference fairly deducible therefrom is the prisoner guilty of murder in the second degree or manslaughter, the court should instruct the jury that it is their duty to render a verdict of guilty or not guilty. Under the construction of the statute by this Court in State v. Gilchrist, 113 N. C., 673, and State v. Norwood, supra, the third section does not give jurors a discretion when rendering their verdict, to determine of what degree of murder a prisoner is guilty. They must render a verdict according to the evidence, and believing a prisoner guilty beyond a reasonable doubt of murder in the first degree it is their duty so to find, however much inclined to show mercy by rendering a verdict for a lesser offence. Their obligation in that iespect has not been changed by the statute and is the same as it was upon the trial for homicide before its enactment, and the question was whether the prisoner was guilty of murder or manslaughter. This question has been settled by our decisions, not only in construing the act under consideration, but also the similar one dividing the crime of buglary into two degrees. State v. Alston, 113 N. C., 666; State v. McKnight, 111 N. C., 690; State v. Fleming, 107 N. C., 905.

We are aware that the construction which has been placed upon this section of the Act in some of the States where a similar provision is found in the statutes dividing murder into degrees, is different from ours. In all cases of murder in those States, the jury, having a discretion in rendering their verdict to determine of what degree the prisoner is guilty, it is error in the court to confine their consideration to the question of guilty of murder in the first degree or not guilty, and thereby deprive them of the right to exercise such discretion. Not having such discretion in this State, and there being no evidence in this case but a confession of'murder in the first degree, with circumstances to corroborate the confession, his Honor was correct in refusing to submit the question of murder in the second degree or of manslaughter to the jury.

The other material question raised by the prisoner is upon that part of the charge, which is in the following language: “The court charges the jury that if from all the evidence in the case you are satisfied beyond a reasonable doubt that the prisoner entered the store of James Brown on the, night of the homicide, with the intent to commit larceny, which is a felony, and while in the store, billed the deceased, although he did not intend or expect to kill him when he entered the store, he is guilty of murder as charged in the bill of indictment and you should so find.”

To make this instruction applicable to the case, it is only necessary to say that there is evidence which tends to show that the homicide for which the prisoner was tried was committed in the attempt to perpetrate the crime of larceny, which is a felony under our law. As to the correctness of the charge of the court, as a legal proposition, there can be no question in this respect, for a homicide committed in the attempt to perpetrate a felony under the circumstances detailed in the evidence in this case, is murder and was murder before the Act of 1893, Ch. 85. By that statute, murder committed in the perpetration of a felony is now murder in the first degree. The able counsel of the prisoner, however, earnestly contends that under the indictment in this case, the court should not have submitted the question of murder in the first degree, in the attempt to perpetrate a larceny, to the jury, inasmuch as there is no allegation to that effect in the indictment; and he relies upon the authority of Mr. Bishop to Sustain that contention. The indictment does not contain such allegation and the authority relied upon is to the effect for which it is cited. But another equally able expounder of criminal law, Dr. Wharton, takes the opposite view in his work on homicide, page 387, and cites various decisions of courts of last resort to sustain him. This Court, however, has decided the question adversely to the prisoner in State v. Gilchrist, supra. The statute under which the prisoner is indicted contains in section 3 the following provision: “Nothing herein contained shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.” The plain words of this section require no construction from the Court, and, in order to sustain the contention of the counsel for the prisoner, it will be necessary to declare a part of the section unconstitutional and overrule the decision of this Court. Under this indictment before the Act of 1893, the trial Judge would have been sustained in an instruction submitting the question of murder in the attempt to perpetrate a larceny to the jury, without any specific allegation to that effect. The Act provides that murder of that character is murder in the first degree, and further provides that nothing therein contained shall be construed to require any alteration or modification of the existing form of indictment. These provisions are positive enactments that it is now unnecessary to make the specific allegation contended for by :¡couúsel to sustain the charge of the court, inasmuch as it was not necessary before tbe Act. The form used in this case is that authorized by the Act of 1887, Ch. 58, and the constitutionality of this Act has been sustained in the case of State v. Moore, 104 N. C., 743. There is no reason for overruling that case.

This aspect of the case presented by the court is likewise dependent upon the preliminary finding by the jury that the prisoner’s confession as to the killing, with all of its details, is true. The court left the jury to say whether, after determining that the prisoner had aimed to kill the deceased, they were also satisfied that he entered the store with the intent to commit a felony. Looking at the evidence as we do, the jury must in this aspect have found the killing with the premeditated intent upon the prisoner’s confession as a basis, because that was an inseparable part of the confession of breaking into the store. Without the confession as a whole the breaking could not have been shown, and with the confession found it was mere surplusage to ascertain the intent of entering, after finding a deliberate killing. So that in no view of the testimony, leaving out the confession, would there have been sufficient evidence to show the prisoner guilty of any offence; and in no aspect of the testimony, if the confession were believed, was he guilty of any less offence than murder in the first degree. We do not deem it necessary to discuss the other exceptions. After giving them a careful consideration we find no error. The judgment is affirmed.

Affirmed.

Eueohes, J"., having been of counsel in the court below did not sit on the hearing of this appeal.