HUSKINS, Justice.
Defendant assigns as error that the trial court failed to instruct the jury on the issue of manslaughter and limited the
jury in its deliberations to one of three verdicts, to wit: murder in the first degree (with or without recommendation as to punishment) , murder in the second degree, and not guilty.
Where it is permissible under the bill of indictment to convict defendant of a lesser degree of the crime charged,
and there is evidence to swpport a milder verdict,
defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions.
State v. Robinson,
188 N.C. 784, 125 S.E. 617 (1924) ;
State v. Keaton,
206 N.C. 682, 175 S.E. 296 (1934) ;
State v. Riera,
276 N.C. 361, 172 S.E. 2d 535 (1970). Error in failing to submit the question of defendant’s guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree, if the different permissible degrees
arising on the evidence
had been correctly presented in the court’s charge.
State v. Davis,
242 N.C. 476, 87 S.E. 2d 906 (1955);
State v. Childress,
228 N.C. 208, 45 S.E. 2d 42 (1947).
The foregoing principle applies only in those cases where there is evidence of guilt of the lesser degree.
State v. Smith,
201 N.C. 494, 160 S.E. 577 (1931). Where all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree, the principle does not apply and the court correctly refuses to charge on the
unsupported lesser degree. State v. Manning,
221 N.C. 70, 18 S.E. 2d 821 (1942) ;
State v. Sawyer,
224 N.C. 61, 29 S.E. 2d 34 (1944) ;
State v. Brown,
227 N.C. 383, 42 S.E. 2d 402 (1947);
State v. Bell,
228 N.C. 659, 46 S.E. 2d 834 (1948).
Compare State v. Freeman,
275 N.C. 662, 170 S.E. 2d 461 (1969), which discusses the law in this and other jurisdictions when there
is
evidence sufficient to require submission of manslaughter and the jury convicts of murder in the first degree.
Defendant does not contend on this appeal that the element of malice is not shown by the evidence. Rather, his contention is that the evidence as a whole gives rise to a permissible inference that he did not
intentionally
kill the deceased. Therefore, defendant argues, the jury could have found him guilty of manslaughter and, on authority of
State v. McNeill,
229
N.C. 377, 49 S.E. 2d 733 (1948), the judge was required to so instruct the jury.
The record in this case is barren of any evidence of manslaughter. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation.
State v. Baldwin,
152 N.C. 822, 68 S.E. 148 (1910) ;
State v. Benge,
272 N.C. 261, 158 S.E. 2d 70 (1967). Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation.
State v. Foust,
258 N.C. 453, 128 S.E. 2d 889 (1963). Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. 14-17;
State v. Lamm,
232 N.C. 402, 61 S.E. 2d 188 (1950).
The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions that (1) the killing was unlawful and (2) done with malice, and an unlawful killing with malice is murder in the second degree. Here, all the evidence tends to show that defendant stubbornly continued over a period of hours to curse the deceased and to assault his helpless victim time after time with various deadly weapons while Willa Dean Simmons was begging him to cease and desist. By these persistent assaults without the slightest provocation he inflicted mortal wounds proximately causing the death of his victim. This evidence affords no basis upon which defendant could be found guilty of manslaughter. Upon this evidence the presumptions arose, and it was then incumbent upon defendant, in keeping with legal principles too well settled to require repetition, to satisfy the jury of the truth of facts which would mitigate the killing to manslaughter or excuse it altogether. He offered absolutely nothing in mitigation of his crime.
In the following language from
State v. Gordon,
241 N.C. 356, 85 S.E. 2d 322 (1955), Justice Bobbitt (now Chief Justice) wrote the applicable law:
“When the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree. In
State v. Gregory,
203 N.C. 528, 166 S.E. 387 [1932], where the defense was that an
accidental
discharge
of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an
intentional hilling
with a deadly weapon; and since the
Gregory case
it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression,
intentional killing,
is not used in the sense that a specific intent
to kill
must be admitted or established. The sense of the expression is that the presumptions arise when the defendant
intentionally assaults
another with a deadly weapon and thereby proximately causes the death of the person assaulted. [Citations omitted] A specific intent
to kill,
while a necessary constitutent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions.”
Accord State v. Barber,
270 N.C. 222, 154 S.E. 2d 104 (1967) ;
State v. Mercer,
275 N.C. 108, 165 S.E. 2d 328 (1969) ;
State v. Phillips,
264 N.C. 508, 142 S.E. 2d 337 (1965);
State v. Winford,
279 N.C. 58, 181 S.E. 2d 423 (1971).
State v. McNeill, supra
(229 N.C. 377, 49 S.E. 2d 733), relied on by defendant, was decided prior to decision in
State v. Gordon, supra.
Inexact expressions therein contrary to the legal principles laid down in
Gordon
are disapproved and may not be considered authoritative on the facts disclosed by the evidence in this case.
It is clear that, upon the State’s evidence, defendant was guilty of at least murder in the second degree. The additional ingredient of premeditation and deliberation necessary in first degree murder may be inferred from the vicious and brutal circumstances of the homicide,
e.g.,
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HUSKINS, Justice.
Defendant assigns as error that the trial court failed to instruct the jury on the issue of manslaughter and limited the
jury in its deliberations to one of three verdicts, to wit: murder in the first degree (with or without recommendation as to punishment) , murder in the second degree, and not guilty.
Where it is permissible under the bill of indictment to convict defendant of a lesser degree of the crime charged,
and there is evidence to swpport a milder verdict,
defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions.
State v. Robinson,
188 N.C. 784, 125 S.E. 617 (1924) ;
State v. Keaton,
206 N.C. 682, 175 S.E. 296 (1934) ;
State v. Riera,
276 N.C. 361, 172 S.E. 2d 535 (1970). Error in failing to submit the question of defendant’s guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree, if the different permissible degrees
arising on the evidence
had been correctly presented in the court’s charge.
State v. Davis,
242 N.C. 476, 87 S.E. 2d 906 (1955);
State v. Childress,
228 N.C. 208, 45 S.E. 2d 42 (1947).
The foregoing principle applies only in those cases where there is evidence of guilt of the lesser degree.
State v. Smith,
201 N.C. 494, 160 S.E. 577 (1931). Where all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree, the principle does not apply and the court correctly refuses to charge on the
unsupported lesser degree. State v. Manning,
221 N.C. 70, 18 S.E. 2d 821 (1942) ;
State v. Sawyer,
224 N.C. 61, 29 S.E. 2d 34 (1944) ;
State v. Brown,
227 N.C. 383, 42 S.E. 2d 402 (1947);
State v. Bell,
228 N.C. 659, 46 S.E. 2d 834 (1948).
Compare State v. Freeman,
275 N.C. 662, 170 S.E. 2d 461 (1969), which discusses the law in this and other jurisdictions when there
is
evidence sufficient to require submission of manslaughter and the jury convicts of murder in the first degree.
Defendant does not contend on this appeal that the element of malice is not shown by the evidence. Rather, his contention is that the evidence as a whole gives rise to a permissible inference that he did not
intentionally
kill the deceased. Therefore, defendant argues, the jury could have found him guilty of manslaughter and, on authority of
State v. McNeill,
229
N.C. 377, 49 S.E. 2d 733 (1948), the judge was required to so instruct the jury.
The record in this case is barren of any evidence of manslaughter. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation.
State v. Baldwin,
152 N.C. 822, 68 S.E. 148 (1910) ;
State v. Benge,
272 N.C. 261, 158 S.E. 2d 70 (1967). Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation.
State v. Foust,
258 N.C. 453, 128 S.E. 2d 889 (1963). Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. 14-17;
State v. Lamm,
232 N.C. 402, 61 S.E. 2d 188 (1950).
The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions that (1) the killing was unlawful and (2) done with malice, and an unlawful killing with malice is murder in the second degree. Here, all the evidence tends to show that defendant stubbornly continued over a period of hours to curse the deceased and to assault his helpless victim time after time with various deadly weapons while Willa Dean Simmons was begging him to cease and desist. By these persistent assaults without the slightest provocation he inflicted mortal wounds proximately causing the death of his victim. This evidence affords no basis upon which defendant could be found guilty of manslaughter. Upon this evidence the presumptions arose, and it was then incumbent upon defendant, in keeping with legal principles too well settled to require repetition, to satisfy the jury of the truth of facts which would mitigate the killing to manslaughter or excuse it altogether. He offered absolutely nothing in mitigation of his crime.
In the following language from
State v. Gordon,
241 N.C. 356, 85 S.E. 2d 322 (1955), Justice Bobbitt (now Chief Justice) wrote the applicable law:
“When the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree. In
State v. Gregory,
203 N.C. 528, 166 S.E. 387 [1932], where the defense was that an
accidental
discharge
of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an
intentional hilling
with a deadly weapon; and since the
Gregory case
it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression,
intentional killing,
is not used in the sense that a specific intent
to kill
must be admitted or established. The sense of the expression is that the presumptions arise when the defendant
intentionally assaults
another with a deadly weapon and thereby proximately causes the death of the person assaulted. [Citations omitted] A specific intent
to kill,
while a necessary constitutent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions.”
Accord State v. Barber,
270 N.C. 222, 154 S.E. 2d 104 (1967) ;
State v. Mercer,
275 N.C. 108, 165 S.E. 2d 328 (1969) ;
State v. Phillips,
264 N.C. 508, 142 S.E. 2d 337 (1965);
State v. Winford,
279 N.C. 58, 181 S.E. 2d 423 (1971).
State v. McNeill, supra
(229 N.C. 377, 49 S.E. 2d 733), relied on by defendant, was decided prior to decision in
State v. Gordon, supra.
Inexact expressions therein contrary to the legal principles laid down in
Gordon
are disapproved and may not be considered authoritative on the facts disclosed by the evidence in this case.
It is clear that, upon the State’s evidence, defendant was guilty of at least murder in the second degree. The additional ingredient of premeditation and deliberation necessary in first degree murder may be inferred from the vicious and brutal circumstances of the homicide,
e.g.,
lack of provocation, threats before and during the occurrence, infliction of lethal blows after the victim had been felled and rendered helpless, and conduct of the defendant before and after the killing.
State v. Reams,
277 N.C. 391, 178 S.E. 2d 65 (1970) ;
State v. Hamby,
276 N.C. 674, 174 S.E. 2d 385 (1970);
State v. Walters,
275 N.C. 615, 170 S.E. 2d 484 (1969) ;
State v. Moore,
275 N.C. 198, 166 S.E. 2d 652 (1969) ;
State v. Faust,
254 N.C. 101, 118 S.E. 2d 769 (1961) ;
State v. Stanley,
227 N.C. 650, 44 S.E. 2d
196 (1947). Moreover, when a homicide is perpetrated by means of torture, as here, premeditation and deliberation are presumed and defendant is guilty of murder in the first degree.
State v. Dunheen,
224 N.C. 738, 32 S.E. 2d 322 (1944). “A murder which shall be perpetrated by means of . . . torture . . . shall be deemed to be murder in the first degree. ...” G.S. 14-17.
For the reasons stated, we hold that the trial court correctly refused to submit the issue of manslaughter to the jury.
In declining to submit manslaughter as a possible verdict, the court used the following language: “And, gentlemen, I instruct you there is in this case, no evidence upon which a verdict of manslaughter could be based and you will not be concerned further with that degree of homicide.” Defendant assigns this instruction as error, contending that it constitutes an expression of opinion on the credibility of the evidence in violation of G.S. 1-180. It suffices to say that the judge is required to declare and explain the law arising on the evidence. It is not an expression of opinion, but rather the duty of the trial judge, where the evidence so warrants, to inform the jury that manslaughter does not arise on the evidence in the case. It is the duty of the judge to determine, in the first instance, if there is any evidence or any inference fairly deducible therefrom tending to prove one of the lower grades of murder. Having done so, and having concluded that there was no basis for submission of manslaughter to the jury, it was the duty of the judge to instruct it accordingly.
State v. Spivey,
151 N.C. 676, 65 S.E. 995 (1909).
Accord State v. Hill,
276 N.C. 1, 170 S.E. 2d 885 (1969). This assignment is overruled.
The brief filed for defendant by his court-appointed counsel does not discuss two allegations made by defendant in his proceedings in the United States District Court, to wit: (1) that evidence introduced at his trial was obtained by an unlawful search and seizure and (2) that a statement improperly extracted from him was introduced into evidence at his trial. Defense counsel stated during argument of the case that those matters had not been raised and discussed in the brief because there was nothing in the record to support them. Nevertheless, defendant has written this Court directly, calling attention to the omission and reasserting those contentions. He does not specify the items allegedly illegally seized, but the record
shows that several items were offered in evidence against him, including the maul, the trousers and cap worn by the deceased, and numerous photographs showing the scene of the crime, the body of the deceased, and the liquor still down the road from the house. The record shows no objection to the admission of any of the exhibits or to the testimony of law enforcement officers describing the scene of the crime.
Moreover, it appears from the record that defendant reported the death to the undertaker who notified the coroner. Defendant returned to the scene of the crime with the coroner who, after arriving at the scene, called the sheriff. When the sheriff arrived about 11 a.m., he entered defendant’s home and viewed the surrounding premises. Defendant was present and made no objection. The record discloses that the maul and weed burner were in plain view on the back porch. The trousers worn by the deceased were in plain view in the room where the body lay. No search was made to discover these items. None was necessary. It is settled law that under circumstances requiring no search the constitutional immunity from unreasonable searches and seizures never arises. “Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand.” 47 Am. Jur., Searches and Seizures, § 20;
State v. Colson,
274 N.C. 295, 163 S.E. 2d 376 (1968) ;
State v. Kinley,
270 N.C. 296, 154 S.E. 2d 95 (1967) ;
State v. Coffey,
255 N.C. 293, 121 S.E. 2d 736 (1961) ;
State v. Giles,
254 N.C. 499, 119 S.E. 2d 394 (1961).
The record is barren of any evidence to support defendant’s assertion that a statement was “improperly extracted from him” and evidence thereof offered at his trial. Defendant voluntarily made various self-serving declarations to the officers, all of which tended to completely exonerate him, and these were related to the jury by the officers who testified in the case. They were incompetent, even for corroborative purposes, since defendant did not go upon the stand. Even so, their admission was favorable to defendant and he is in no position to complain. We find no merit in these contentions.
Defendant was fortunate to have been tried before a compassionate jury. In the trial below we find
No error.