Seawell, J.
We have examined the exceptions with that care which is due from the fact that defendant’s appeal is from conviction of a capital crime. However, they are too numerous for separate discussion here. We turn our attention to those which seem to involve the more serious objections.
Perhaps the most important of these is the objection that, in the instructions to the jury, the manner of presenting the State’s contentions, and the greater prominence given them, constitute a “summing up” in behalf of the State, amounting to an expression of opinion.
S. v. McDowell,
129 N. C., 523, 39 S. E., 40;
S. v. Hart,
186 N. C., 582, 587, 120 S. E., 345;
Withers v. Lane,
144 N. C., 184, 56 S. E., 855;
Carruthers v. R. R.,
215 N. C., 675, 678, 2 S. E. (2d), 878.
From its nature an objection of this sort does not fall within the rule ordinarily applying — that objection must be made at the time, or the exception will not lie. Nor is it classed as a broadside exception to the charge if made with such particularity as to guide the court with some certainty to the objectionable features. We would have welcomed more definite references in the instant case, but, since the nature of the objection is fully understood, we have undertaken the necessary analysis and appraisal of the charge in the light of the exception. There is a numerical preponderance in the statement of the State’s contentions, referable, naturally, to the difference both in the character and in the volume of evidence on the respective sides. This is not the cause of legal objection,
S. v. Jessup,
219 N. C., 620, 14 S. E. (2d), 668;
S. v. Cureton,
218 N. C., 491, 11 S. E. (2d), 469. We have been unable, however, to find in the charge such a departure from the normal and impartial manner of stating the contentions of the parties as would support the pertinent objection — that it constitutes an expression of opinion on the evidence.
There are further objections that in specific instances the expressions of the judge carried with them the force of an expression of opinion, as, for example, that the court repeatedly minimized the importance of the remark originally addressed to Grainger by deceased in reference to telling Grainger’s wife he was going with other girls. This contention of the State, that the words were friendly and jocular, was properly brought to the attention of the jury, if the contentions were stated at all, and we find nothing in the manner of the statement that would suggest that the court was giving its own opinion, or any opinion.
Perhaps a more serious challenge to the trial lies in the possibility • that the jury may have connected the statement of the State’s contention that Grainger went into the Wooten office for the purpose of arming himself with the excluded testimony of Boswell and Wright about a pistol they found in the bank. Eeference to .the above statement of the case shows that these officers found Grainger unarmed immediately after the shooting; that in company with an officer of the bank and with the aid of keys found upon Grainger, who was janitor of the Wooten office and of the bank, they proceeded through Wooten’s office by a connecting door into the bank, where they found a pistol under a book. They were permitted to make this statement, and the pistol was exhibited upon the trial; but subsequently this evidence was stricken out. Later, in the course of his charge, the judge said to the jury:
“And the State contends that you should be satisfied beyond a reasonable doubt that when he went into the office, the real estate office, that he went in there' for the purpose of preparing himself and equipping himself, putting in execution a plan that he then had fixed and determined upon.”
If this had been necessarily a reference to the evidence withdrawn from the jury, the situation would be somewhat analogous to that in
S. v. Love,
187 N. C., 32, 121 S. E., 20, where in recapitulating the evidence the judge inadvertently referred to certain evidence which had been withdrawn from consideration of the jury, and a new trial was ordered. But there is no necessary reference here to the stricken evidence. The statement of such a contention, not unreasonable under the circumstances, would certainly have been without fault if its effect was not to bring back into the picture the excluded evidence. Upon careful consideration, we do not regard it as prejudicial.
Inter alia
the judge instructed the jury :
“So, Gentlemen, the Court instructs you that if the State has satisfied you from the evidence and beyond a reasonable doubt that the prisoner took the life of the deceased wilfully and unlawfully and intentionally, with malice and with premeditation and deliberation, your verdict would be first degree murder, but if the State has failed to satisfy you of each
and every one of those elements, particularly has failed to satisfy you that the killing resulted from premeditation and deliberation as well as from malice, an intentional, unlawful act, but has satisfied you beyond a reasonable doubt that the killing was done intentionally with a deadly weapon or that the deceased came to his death as a result of a pistol shot fired intentionally by the prisoner, then you would return a verdict of murder in the second degree unless the prisoner, himself, through his evidence or the evidence of his witnesses, has satisfied you, not beyond a reasonable doubt, but has merely satisfied you that at the time there was no malice, as defined' and explained by the Court to you; then, if the prisoner has satisfied you of that, you would return a verdict of guilty of manslaughter unless the prisoner has gone further and satisfied you that the killing was in self-defense. And he has the burden of satisfying you of that contention, not beyond a reasonable doubt nor even by the greater weight of the evidence, but merely to satisfy you that the shooting as a result of which death ensued to the deceased, was in self-defense of the prisoner himself.”
It will be noticed that the above instruction would make it incumbent on the defendant to show the mitigating circumstances “through his own evidence or the evidence of his witnesses.” It is well settled that to show mitigation or such facts as would excuse the homicide altogether, the defendant may avail himself of the State’s evidence — in fact, any evidence adduced upon the trial.
Commonwealth v. York
(Mass.), 43 Am. Dec., 373, 384, 394; 20 Am. Jur., p. 157. This, however, is not prejudicial error here — since there is nothing in the State’s evidence favorable to the defendant in that regard.
S. v. Wallace,
203 N. C., 284, 165 S. E., 716;
S. v. Cureton,
215 N. C., 778, 3 S. E. (2d), 343.
The defendant insists that in this instruction the court not only cast upon him the burden of reducing the crime from murder in the first degree, but limited his plea of self-defense to the crime of manslaughter. The first criticism is untenable upon inspection of the language and its syntax.
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Seawell, J.
We have examined the exceptions with that care which is due from the fact that defendant’s appeal is from conviction of a capital crime. However, they are too numerous for separate discussion here. We turn our attention to those which seem to involve the more serious objections.
Perhaps the most important of these is the objection that, in the instructions to the jury, the manner of presenting the State’s contentions, and the greater prominence given them, constitute a “summing up” in behalf of the State, amounting to an expression of opinion.
S. v. McDowell,
129 N. C., 523, 39 S. E., 40;
S. v. Hart,
186 N. C., 582, 587, 120 S. E., 345;
Withers v. Lane,
144 N. C., 184, 56 S. E., 855;
Carruthers v. R. R.,
215 N. C., 675, 678, 2 S. E. (2d), 878.
From its nature an objection of this sort does not fall within the rule ordinarily applying — that objection must be made at the time, or the exception will not lie. Nor is it classed as a broadside exception to the charge if made with such particularity as to guide the court with some certainty to the objectionable features. We would have welcomed more definite references in the instant case, but, since the nature of the objection is fully understood, we have undertaken the necessary analysis and appraisal of the charge in the light of the exception. There is a numerical preponderance in the statement of the State’s contentions, referable, naturally, to the difference both in the character and in the volume of evidence on the respective sides. This is not the cause of legal objection,
S. v. Jessup,
219 N. C., 620, 14 S. E. (2d), 668;
S. v. Cureton,
218 N. C., 491, 11 S. E. (2d), 469. We have been unable, however, to find in the charge such a departure from the normal and impartial manner of stating the contentions of the parties as would support the pertinent objection — that it constitutes an expression of opinion on the evidence.
There are further objections that in specific instances the expressions of the judge carried with them the force of an expression of opinion, as, for example, that the court repeatedly minimized the importance of the remark originally addressed to Grainger by deceased in reference to telling Grainger’s wife he was going with other girls. This contention of the State, that the words were friendly and jocular, was properly brought to the attention of the jury, if the contentions were stated at all, and we find nothing in the manner of the statement that would suggest that the court was giving its own opinion, or any opinion.
Perhaps a more serious challenge to the trial lies in the possibility • that the jury may have connected the statement of the State’s contention that Grainger went into the Wooten office for the purpose of arming himself with the excluded testimony of Boswell and Wright about a pistol they found in the bank. Eeference to .the above statement of the case shows that these officers found Grainger unarmed immediately after the shooting; that in company with an officer of the bank and with the aid of keys found upon Grainger, who was janitor of the Wooten office and of the bank, they proceeded through Wooten’s office by a connecting door into the bank, where they found a pistol under a book. They were permitted to make this statement, and the pistol was exhibited upon the trial; but subsequently this evidence was stricken out. Later, in the course of his charge, the judge said to the jury:
“And the State contends that you should be satisfied beyond a reasonable doubt that when he went into the office, the real estate office, that he went in there' for the purpose of preparing himself and equipping himself, putting in execution a plan that he then had fixed and determined upon.”
If this had been necessarily a reference to the evidence withdrawn from the jury, the situation would be somewhat analogous to that in
S. v. Love,
187 N. C., 32, 121 S. E., 20, where in recapitulating the evidence the judge inadvertently referred to certain evidence which had been withdrawn from consideration of the jury, and a new trial was ordered. But there is no necessary reference here to the stricken evidence. The statement of such a contention, not unreasonable under the circumstances, would certainly have been without fault if its effect was not to bring back into the picture the excluded evidence. Upon careful consideration, we do not regard it as prejudicial.
Inter alia
the judge instructed the jury :
“So, Gentlemen, the Court instructs you that if the State has satisfied you from the evidence and beyond a reasonable doubt that the prisoner took the life of the deceased wilfully and unlawfully and intentionally, with malice and with premeditation and deliberation, your verdict would be first degree murder, but if the State has failed to satisfy you of each
and every one of those elements, particularly has failed to satisfy you that the killing resulted from premeditation and deliberation as well as from malice, an intentional, unlawful act, but has satisfied you beyond a reasonable doubt that the killing was done intentionally with a deadly weapon or that the deceased came to his death as a result of a pistol shot fired intentionally by the prisoner, then you would return a verdict of murder in the second degree unless the prisoner, himself, through his evidence or the evidence of his witnesses, has satisfied you, not beyond a reasonable doubt, but has merely satisfied you that at the time there was no malice, as defined' and explained by the Court to you; then, if the prisoner has satisfied you of that, you would return a verdict of guilty of manslaughter unless the prisoner has gone further and satisfied you that the killing was in self-defense. And he has the burden of satisfying you of that contention, not beyond a reasonable doubt nor even by the greater weight of the evidence, but merely to satisfy you that the shooting as a result of which death ensued to the deceased, was in self-defense of the prisoner himself.”
It will be noticed that the above instruction would make it incumbent on the defendant to show the mitigating circumstances “through his own evidence or the evidence of his witnesses.” It is well settled that to show mitigation or such facts as would excuse the homicide altogether, the defendant may avail himself of the State’s evidence — in fact, any evidence adduced upon the trial.
Commonwealth v. York
(Mass.), 43 Am. Dec., 373, 384, 394; 20 Am. Jur., p. 157. This, however, is not prejudicial error here — since there is nothing in the State’s evidence favorable to the defendant in that regard.
S. v. Wallace,
203 N. C., 284, 165 S. E., 716;
S. v. Cureton,
215 N. C., 778, 3 S. E. (2d), 343.
The defendant insists that in this instruction the court not only cast upon him the burden of reducing the crime from murder in the first degree, but limited his plea of self-defense to the crime of manslaughter. The first criticism is untenable upon inspection of the language and its syntax. The last criticism does not take into consideration the fact that the court was dealing with the presumption of second degree murder arising from the intentional use of a deadly weapon — should that be established beyond a reasonable doubt — and was not dealing with the subject of self-defense generally; he did that elsewhere. It is familiar law that where an intentional killing is accomplished by the use of a deadly weapon, a rebuttable presumption arises that the defendant is guilty of murder in the second degree.
S. v. Jones,
145 N. C., 466, 59 S. E., 353;
S. v. Rowe,
155 N. C., 437, 71 S. E., 332;
S. v. Debnam,
222 N. C., 266, 22 S. E. (2d), 562;
S. v. Meares,
222 N. C., 436, 23 S. E. (2d), 311. And it is thereupon incumbent on the accused to show mitigating circumstances that will reduce the crime to manslaughter, or
such facts as will exonerate him altogether. Self-defense, if established to the satisfaction of the jury, will entitle him to an acquittal.
The formula employed here is in substantial agreement with precedent and, we think, deals with the subject fairly.
S. v. Capps,
134 N. C., 622, 46 S. E., 730;
S. v. Quick,
150 N. C., 820, 64 S. E., 427;
S. v. Terrell,
212 N. C., 145, 193 S. E., 873. In other parts of the charge, dealing with the plea, of self-defense directly, the instructions made it clear that the plea of self-defense should be considered upon all charges growing out of the homicide. The court repeatedly stated that defendant had a right to take life in self-defense and fully explained the circumstances under which this might be done, and particularly in the conclusion of his charge he instructed the jury with reference to self-defense:
“If he has satisfied you that the killing was done under those circumstances (referring to self-defense as defined), where he was in danger of losing his own life or suffering great bodily harm or, not being in danger actually felt’ that he was in danger of receiving death or great bodily harm and that the fear and apprehension on his part was only a reasonable one under the circumstances and that he used no more force than was reasonably necessary under the circumstances as they appeared to him at the time, the burden being upon him, if he has satisfied you of those things, then of course, you would return a verdict of not guilty of anything.”
Upon a careful consideration of all the exceptions, and of the whole record, we find nothing which would justify us in disturbing the result of the trial. We find
No error.