
    STATE v. CHARLES MURPHY.
    (Filed 13 December, 1911.)
    1. Homicide — Murder in First Degree — Answer to Issues.
    Our statute on tlie subject peremptorily requires that before sentence of death may be pronounced, the trial jury shall determine in their verdict that the prisoner is guilty of murder in the first degree (Revisal, sec. 3271), and our trial courts should always require that verdicts in capital cases definitely and expressly state the degree of murder of which the prisoner is convicted, and the verdict should be recorded as rendered.
    
      2. Homicide — Murder in First Degree — Defense—Drunkenness— Premeditation.
    While voluntary drunkenness may not be considered as a legal excuse for a crime, the principle is not allowed to prevail where, in addition to the overt act, it is required that a definite, specific intent be established as an essential feature of the crime charged.
    3. Same — Instructions—Appeal and Error.
    Our statute dividing the crime of murder into two degrees requires that for conviction in the first degree there<must be deliberation and premeditation, or a purpose to kill previously formed after weighing the matter, and when the defense properly arises under the evidence, it' is reversible error for the trial judge to refuse to instruct the jury, even in cases of voluntary drunkenness, that if the prisoner was so drunk that he could not form or entertain the essential ingredients of deliberation and premeditation, as stated, they should answer the issue as to murder in the first degree in the prisoner’s favor.
    4. Homicide — Murder in Second Degree — Manslaughter—Defense— Drunkenness.
    The elements of deliberation and premeditation not being required as to murder in the second degree, or manslaughter, the defense of drunkenness is not an available plea thereto.
    Appeal from Lane, J., at March Term, 1911, of TaNCEy.
    Indictment for murder. There was evidence tending to show that on 21 December, 1910, the prisoner, openly and in the presence of several witnesses, shot John Simmons, the deceased, in the back, with a pistol, and killed him, and that the killing was deliberate and premeditated.
    There was evidence on the part of the prisoner tending to show that the killing was not deliberate, of premeditated purpose ; second, that the mind of the prisoner was, at the time, so affected by disease that he was incapable of committing crime; third, that the mind of the prisoner was so affected, at the time, by voluntary drunkenness that he was incapable of committing murder in the first degree.
    The court charged the jury as to the degrees of crime, embraced in the bill of indictment and o*n different phases of the evidence, elaborately as to nonresponsibility for crime in case of insanity, and in closing the charge said:
    
      “Take the case; give it the consideration that its importance merits, and make up your verdict. If you find the defendant guilty of murder in the first degree, your verdict will be ‘Guilty,’ simply. If you find him guilty of murder in the second degree, your verdict will be ‘Guilty of murder in the second degree.’ If you find him guilty of manslaughter, your verdict will be ‘Guilty of manslaughter.’ If acquitted, you will say ‘Not guilty,’ and no more.”
    The jury rendered a verdict of “Guilty,” and the same being so recorded, there was sentence of death, and the prisoner excepted and appealed, assigning for error (1) that the court failed and refused to charge, as requested, that if the mind of the prisoner, at the time of the killing, was so affected by drunkenness, though voluntary, as to be incapable of forming or entertaining a deliberate, premeditated purpose to take the life of the deceased, he could not be convicted of murder in the first degree. (2) That the verdict, as rendered, did not justify the court in pronouncing sentence of death.
    
      Attorney-General T. W. Biclcett and Assistant Attorney-General George L. Jones for the State.
    
    
      Gardner & Gardner and Justice & Broadhwrst for defendant.
    
   Horns, J.,

after stating the case: Our statute, dividing the crime of murder into two degrees, concluded with the direction that the jury before whom an offender is tried “shall determine, in their verdict, whether the crime is murder in the first or second degree.” This portion of the law now appears in Revisal, sec. 3271, and contains peremptory requirement that before sentence of death may be pronounced the trial jury shall determine, in their verdict, that the prisoner is guilty of murder in the first degree. We have held in several cases that although a verdict, as expressed, may not be sufficiently determinative, it may become so by reference to' the pleadings or the charge of the court, or even to the evidence, when the same all apjiears of record.

An instance of the verdict cured by reference to the charge of trial judge is afforded in Richardson v. Edwards, 156 N. C., 590. Under this principle and owing to the very definite and precise instructions of tbe court as to tbe terms of tbe verdict, in case tbe jury should find tbe prisoner guilty of murder in tbe first degree, we might not feel constrained to disturb tbe judgment of tbe court, but we deem it proper to say that, having regard for. tbe language of tbe statute and tbe supreme importance of tbe issue, our trial courts should always require that juries in capital cases should definitely and expressly say of what degree of murder they convict tbe prisoner, and tbe verdict should be recorded as rendered. In a case of this kind there should be no room for doubt or mistake.

Without definite ruling as to tbe form and sufficiency of tbe verdict when considered in reference to tbe charge of tbe lower court, we are of opinion that tbe prisoner is entitled to a new trial by reason of tbe failure to present tbe view, arising on tbe testimony and embodied in bis prayers for instructions, as to tbe effect of “voluntary drunkenness.”

It is very generally understood that voluntary drunkenness is no legal excuse for crime, and tbe position has been held controlling in many causes in this State and on indictments for homicide, as in S. v. Wilson, 104 N. C., 868; S. v. Potts, 100 N. C., 457. Tbe principle, however, is not allowed to prevail where, in addition to tbe overt act, it is required that a definite, specific intent be established as an essential feature of tbe crime. In Clark’s Criminal Law, p. 72, this limitation, on tbe more general principle is thus succinctly stated: “Where a specific intent is essential to constitute crime, tbe fact of intoxication may negative its existence.” Accordingly, since tbe statute dividing tbe crime of murder into two degrees and in cases where it becomes necessary, in order to convict an offender of murder in tbe first degree, to' establish that tbe “killing was deliberate and premeditated,” these terms contain, as an essential element of tbe crime of murder, “a purpose to kill previously formed after weighing tbe matter” (S. v. Banks, 143 N. C., 658; S. v. Dowden, 118 N. C., 1148), a mental process, embodying a specific, definite intent, and if it is shown that an offender, charged with such crime, is so drunk that be is utterly unable to form or entertain this essential purpose, be should not be convicted of tbe higher offense. It is said in some of tbe cases, and tbe statement bas our unqualified approval, that tbe doctrine in question should be applied witb great caution. It does not exist in reference to murder in tbe second degree nor as to manslaughter. Wharton on Homicide (3 Ed.), 810. It bas been excluded in “well-considered decisions where tbe facts show tbat tbe purpose to kill was deliberately formed when sober, though it was executed when drunk, a position presented in S. v. Kale, 124 N. C., 816, and approved and recognized in Arzman v. Indiana,, 123 Ind., 346, and it does not avail from tbe fact tbat an offender is, at tbe time, under the influence of intoxicants, unless, as heretofore stated, bis mind is so affected tbat be is unable to form or entertain tbe specified purpose referred to.

In illustration of tbe principles stated in Reaper v. Vincent, 95 Cal., 425, it was held, “Tbat upon a prosecution for murder, an instruction to tbe jury tbat evidence of drunkenness can only be considered by them for tbe purpose of determining the degree of crime, and for such purpose it should be received witb great caution, is correct.” In Commonwealth v. Cleary, 148 Pa., 27, tbe following instructions were fully approved: “If, however, you find tbat tbe intoxication of tbe prisoner was so great as to render it impossible for him to form tbe willful,, deliberate, and premeditated intent to take tbe life of tbe deceased, tbe law reduces tbe grade of tbe homicide from murder in tbe first degree to murder in tbe second degree. Tbe mere intoxication of tbe prisoner will not excuse or palliate bis offense, unless be was in such a state of intoxication as to be incapable of forming this deliberate and premeditated attempt. If be was, the grade of offense is reduced to murder in tbe second degree.” In Wharton on Homicide (3 Ed.), p. 811, tbe author, referring to this subject, says generally: “Intoxication, though .voluntary, is to be considered by tbe jury in a prosecution for murder in tbe first degree, in which a premeditated design to effect death is essential, witb reference to its effect upon tbe ability of tbe accused at tbe time to form and entertain such a design, not because, per se, it either excuses or mitigates tbe crime, but because, in connection witb other facts, an absence of malice or premeditation may appear. Drunkenness as evi-deuce of want of premeditation or deliberation is not witbin the rule wbicb excludes it as an excuse for crime. And a person who commits a crime while so drunk as to be incapable of forming a deliberate and premeditated design to kill is not guilty of murder in the first degree. The influence of intoxication upon the question of the existence of premeditation, however, depends upon its' degree, and its effect on the mind and passions. No inference of the absence of deliberation and premeditation arises from intoxication, as a matter of law. And intoxication cannot serve as an excuse for the offender; and it should be received with great caution, even for the purpose of reducing the crime to a lower degree.”

Applying the principle, the Court is of opinion that there was error committed in failing to present the view embodied in the prisoner’s prayer for instructions, and he is entitled to have his cause tried before another jury, and it is so ordered.

New trial.  