
    STATE v. ROBERT ROBERSON.
    (Filed 7 April, 1909.)
    1. Murder — Deadly Weapon — Malice—Presumption—Premeditation — Burden of Proof.
    While the law presumes malice from an admission of the killing of a human being with a deadly weapon, a pistol, the burden is on the State to fully satisfy the jury that it was. deliberately and premeditatedly done to justify a conviction of murder in the first degree.
    2. Murder — Deliberation and Premeditation — Evidence Sufficient.
    Evidence of threats made by the prisoner, who was angry with deceased, that he would give deceased trouble unless he paid him certain wages due; that he went to deceased’s place of business with a concealed weapon and shot three times with a pistol from the outside of the structure in which deceased was standing, killed him when unarmed, and ran away, is sufficient to sustain a verdict ’ of murder in the first degree, upon the question of deliberation and premeditation. .
    3. Same — Intent.
    The evidence tended to show that deceased had employed the prisoner and another and refused to pay them; that prisoner was angry with deceased and used threats, and had a concealed weapon, a pistol, on his person, and went to deceased’s place of business and shot him down, firing three times while lie was standing on the outside and deceased, unarmed, on the inside of the structure. The prisoner’s own. evidence made out a clear ease of self-defense, but the State’’s evidence tended to show deliberation and premeditation to kill in the event the money claimed was not paid: Held, evidence that the prisoner went on this occasion, in consequence of being told by the other person with whom prisoner had worked that he had received his money, threw no light upon the intent of the prisoner to kill in the event he should not be paid, and was properly excluded.
    4. Murder — Deliberation and Premeditation — Time—Evidence.
    In order to convict of murder in the first degree, there must be evidence that the fact of the killing was weighed and considered, resulting in the fixed purpose to kill; but the length of time between forming the purpose and the act is not material.
    5. Murder — Deliberation and Premeditation — Circumstantial Evidence.
    Upon the question of murder in the first degree, premeditation and deliberation, like any other fact, may be shown by circumstances, and in determining as to whether there were such the .■jury may .consider evidence oí absence of provocation, absence of quarrel at the time of the killing, and threats, if there were such evidence.
    6. Murder — Deadly Weapon — Malice Presumed — Instructions—Premeditation and Deliberation.
    Malice is a necessary element of murder in the first and second degrees, means killing without legal excuse, and is presumed from the killing with a deadly weapon; and an instruction to the jury accordingly does not intimate a presumption of murder in the first degree, when the charge further states that the defendant must have weighed and determined the matter and formed a fixed purpose to kill, and must have killed as a consequence of this fixed purpose.
    Walker, J., dissenting; Hoke, J., concurring in the dissenting opinion.
    INDICTMENT for tbe murder of Charles Whichard, tried at September Term, 1908, of the Superior Court of Martin, before . W. R. Allen, J.
    
    The prisoner was convicted of the capital felony, and from the judgment of the court appealed.
    The facts are sufficiently stated in the opinion of the Court.
    
      Attorney-General for the State.
    
      Wheeler Martin and Winston & Everett for defendant.
   Brown, J.

1. The most important contention made by the prisoner upon this appeal is that there is no evidence of a premeditated and deliberate homicide.

The prisoner having admitted that he slew the deceased with a pistol, the law presumes malice, but nevertheless places the burden on the State to fully satisfy the jury that it was deliberately and premeditatedly done to justify a conviction of murder in the first degree.

The State examined several witnesses, whose testimony, set out fully in the record, tends strongly to prove that the prisoner and Will Roberson had been employed by deceased, -and that there was a dispute about their wages, which had greatly in-, censed prisoner. On the day of the homicide prisoner armed himself with a pistol and threatened that unless the deceased paid him his money he was going to give him trouble about it; tbat be bad tbe pistol ib bis bosom while at tbe shop of one Moore, and -there made threats against deceased tbat if be did not pay him be would give him trouble; tbat be took tbe pistol from bis bosom and started from Moore’s place towards tbe butcher shop of deceased, near by. Tbe butcher shop has a lattice window, which was raised. Deceased was inside, leaning on tbe butcher’s block. Prisoner fired at him three times from tbe outside of tbe market hous'e and then ran. Tbe evidence tends to prove tbat deceased was unarmed, tbat a small knife was on tbe block and a hatchet under tbe counter, but tbat deceased bad bold of neither.

Tbe only witness examined for tbe prisoner was tbe prisoner himself. His evidence makes out a clear case of self-defense. He testifies tbat be saw Will Roberson come from Whichard’s shop, and tbat Will said, “I have got mine”; tbat be went to tbe shop to get bis money, and asked deceased for it; tbat deceased cursed him and refused to pay him; that- tbe deceased grabbed tbe hatchet and endeavored to kill prisoner, and tbat then prisoner fired on him.

We think tbat tbe evidence was amply sufficient to justify bis Honor in submitting tbe question of premeditation and deliberation to tbe jury. Tbe prisoner was angry with deceased about tbe wages be claimed; be bad armed himself with a pistol tbe1 morning of tbe homicide and concealed it in bis bosom; be made threats against tbe deceased tbat unless be was paid be would give', deceased trouble. Such threats, coupled with tbe character of tbe weapon with which tbe prisoner bad armed himself, justify tbe inference tbat be meant to kill or do serious bodily barm. He carried tbe pistol concealed, but took it out at tbe market bouse and fired at tbe unarmed man from tbe outside of tbe structure, as deceased was leaning on tbe block, and repeated bis fire until be bad sbot three times, and then ran. „ From these facts, supported by abundant evidence, tbe inference tbat tbe shooting was deliberately and purposely done, with intent to kill, if tbe prisoner did not get bis money, is well warranted. State v. Hunt, 134 N. C., 684; State v. Teachey, 138 N. C., 587; State v. Exum, 138 N. C., 599; State v. Daniel, 139 N. C., 549; State v. Gonly, 130 N. C., 683, are cases somewhat in point.

Tbe prisoner was evidently “taking tbe law in bis own bands” and avenging bis own wrongs. In tbis connection we may well quote from an eminent English writer: “Let it be observed tbat in all possible eases deliberate homicide upon a principle of revenge is murder. No man, under the' protection of tbe law, is to be tbe avenger of bis own wrongs. If they are of such a nature for which tbe laws of society will give him an adequate remedy, thither be ought to resort; but be they of what nature soever, be ought to bear bis lot with patience.” Foster’s Grown Law, 296.

2. J. D. Moore, a witness for tbe State, testified: “I was sitting in front of my shop,- when I beard tbe report of a pistol and saw tbe prisoner shoot Whichard three times and then run. Just before tbe shooting tbe prisoner was sitting down at my stove and talking to me. He said tbat Whichard (tbe deceased) owed him some money and be was going to have it or give Whichard some trouble about it. After a while be got up and went immediately to tbe market. He took bis pistol out of bis shirt front and commenced firing. I saw Will Roberson come across tbe railroad from Whichard’s market just before tbe defendant went there.” . On cross-examination of tbis witness tbe prisoner, proposed to show tbat Will Roberson, who bad been at work with tbe prisoner for Whichard, came from Whichard and held up some money and said to prisoner, “I got mine.” Defendant’s counsel stated tbat tbe purpose was to show tbat witness induced defendant to think tbat Whichard bad changed bis mind and was paying off, and tbat tbis showed why defendant went to tbe market. This evidence, on objection by tbe State, was excluded, anc| defendant excepted.

We are of opinion tbat tbe rejected evidence tended to throw no light upon tbe real question at issue, and could not possibly have been of any value to tbe prisoner bad it been admitted, and could not have affected tbe result.

Tbe reason assigned for its competency is tbat tbis declaration of Will Roberson conveyed to tbe prisoner tbe information tbat Will Roberson bad received bis money and induced tbe prisoner to go at once to Whichard in order to get bis pay, in tbe belief tbat be would get it, and thus to disprove any premeditation.

Tbe rejected declaration is a circumstance tending to prove only one fact, viz., that the prisoner went to Whichard’s market to demand the money he claimed that Whichard owed him, but it failed to throw any light whatever upon the prisoner’s purpose in case Whichard still refused to pay him. It was offered solely upon the question of premeditation; and upon no other phase of the case, and if it fails to disprove that, then it is worthless for any purpose.

An examination of the evidence and contentions of the State and of the prisoner discloses the worthlessness of the rejected declaration.

The evidence of the State is very strong, and tends to prove that prisoner armed himself and went to the deceased, intending to kill him or do him bodily harm only in the event that he did not get his money; that he did not get his money, and that without any sort of provocation he shot the deceased, who was unarmed, three times, and killed him.

The defense of the prisoner is self-defense, and rests entirely upon his own evidence. It is evident that the jury utterly rejected the prisoner’s evidence, or else they must have acquitted him. Had they credited his evidence, they could not have done otherwise, under the instructions of his Honor.

It is thus perfectly plain that the rejection of the declaration of Will Roberson, “I got mine,” did not in the least affect or detract from the prisoner’s defense. Did the rejection of it militate in any degree against prisoner upon the question of premeditation? The State did not contend that the •prisoner went to the market armed and with one purpose to kill the deceased in any event, but only in the event that deceased refused to pay him. The deceased did refuse, and the prisoner carried out his previously formed purpose and killed him. The rejected déclaration tends to prove why prisoner went to the market at the time he did, viz., to get his money, a fact admitted by the State, and had he received his money there would have been no homicide. But the contention and evidence of the State is that the prisoner went to the market to get his money, and that he intended to kill the deceased only in the'event he failed to do so.

The rejected declaration throws jio light whatever on prisoner’s intentions in case of such failure. On the contrary, the decided probability is that the knowledge that the deceased had paid "Will Roberson and refused to pay him “added fuel to the flame” and but hardened the prisoner’s previously formed purpose to kill the deceased if he did not pay him.

3.yThe prisoner submitted some prayers for instruction upon the question of premeditation, and excepted because the court declined to give them, and further specifically excepted to the charge of the court, as follows: “By premeditation and deliberation is meant that the reason and judgment is exercised, that the fact of the killing is weighed and considered, and that as a result there is in the mind the fixed purpose to kill. The fixed purpose to kill must precede the act of killing, although the length of time between the time it is formed and carried into effect is not material. This premeditation and deliberation, like any other fact, may be shown by circumstances, and in determining there was such the jury may consider evidence of absence of provocation, absence of’a quarrel at the time of the killing, and threats, if there is such evidence. Not that you are compelled to find premeditation and deliberation from such evidence, but that if there is such evidence you may consider it in determining whether there was such premeditation and deliberation as I have indicated.”

Almost every word in this charge has been repeatedly upheld by this Court. It follows all the decisions from Fuller’s case, 114 N. C., 885, to Bank’s case, 143 N. C., 652. The charge is substantially the charge which was approved by this Court in State v. Teachey, 138 N. C., 598. See, also, State v. Exum, supra; State v. Booker, 123 N. C., 713. The prisoner excepts to the following charge: “Malice, which is a necessary element of murder in the first and second degrees, means, killing without legal excuse, and is presumed from killing with a deadly weapon.”

This is a correct proposition of law. The killing with a deadly weapon raises a presumption of malice. That is all the charge says. There is no intimation that it raises a presumption of murder in the first degree. Such a charge would be obnoxious to Locklear’s case, 118 N. C., 1154.

In another part of the charge the court gave the jury explicit instructions that the defendant must have weighed and determined the matter and formed a fixed purpose to kill, and must have killed as a consequence of this fixed purpose.

The portion of tbe charge excepted to is 'evidently a part of the judge’s charge, that murder is the unlawful killing of another with malice aforethought, and that killing with a deadly weapon raises a presumption of malice. The jury could not, in any view of the charge as to deliberation and premeditation, have possibly thought that the judge intended to say that the killing with a deadly weapon raised a presumption of murder in the first degree, and as a matter of fact the judge did not say it.

The able and painstaking judge who tried this case below delivered a most exhaustive and clear charge to the jury, in which he did the prisoner full justice.

We have examined the entire record, and each exception taken, with the care demanded in a matter of such solemnity, and we find no error of which the prisoner can justly complain.

No Error.

Walker, J.,

dissenting: While I concur with the majority in the rulings upon the other exceptions, I think the court below erred in not admitting what was said and done by Will Roberson, in the presence and hearing of the defendant, before he went to the market for the purpose of seeing Whichard about his wages. That he went there to get his money was shown by the testimony of the State’s witness, J. D. Moore, for he told Moore, not that he intended to give Whichard trouble because' he had refused to pay him, but that he intended to.have his money or give Whichard some trouble, implying that he .would first demand- it of Whichard. The defendant and Will Roberson had worked together for Whichard, and the latter had before refused to pay their wages. It seems that afterwards Whichard changed his mind and paid Will Roberson what was due to him, and the latter then', in the presence of the defendant and J. D. Moore, held up his hand,, with the money in it, and said, “I have got mine.” We must assume this to be true, as the court excluded the testimony. This was not hearsay evidence. It was itself a fact or circumstance, and its competency and relevancy depend upon wbat impression it made on tbe mind of the defendant. ■ It was surely competent for the defendant to show, if he could, that he went to see Whichard with a peaceful and not a hostile purpose. The State had introduced evidence tending to show that his purpose was a hostile one, and any fact or circumstance tending to show the contrary would seem to be relevant to the issue. It was not an unreasonable inference for the defendant to draw, from what Will Roberson said and did, that Whichard had changed his mind and intended to pay both of them what he owed. Why should he pay the one and not the other ? They had both worked under the same circumstances and were equally entitled to their hire. No reason appears from the evidence why he shofild distinguish between them or discriminate against .the defendant. The jury may Im^e convicted the defendant of murder in the first degree, because they found from his previous threat, or the conversation with Moore, that he went to the market with the deliberate intent to kill Whichard’, and not that he had formed his purpose to kill after he had reached there. In 'this view it was material for the defendant to show, if he could, that he ajipro ached Whichard with no homicidal intent, but, believing from what he had heard Will Roberson -say, that he would receive his wages and would have no trouble with Whichard. The jury should have been permitted to hear the excluded evidence, so that they might determine, in the light of all the facts and circumstances, whether there had been premeditation and deliberation on the part of the defendant. I cannot say the evidence was so slight as to render harmless the ruling of the court by which it was rejected. The state of the defendant’s mind was the question involved. If the evidence had been admitted, and upon it, when considered in connection with the other facts, the jury had found that the defendant went to see Whichard for the sole purpose of getting his money, thinking that Whichard would pay him, as he had paid Will Roberson, and that there would be no trouble, the question of premeditation and deliberation would naturally have been restricted to evidence of what occurred after, the defendant had reached the market. It is true, the jury, with the evidence admitted, might have found that the defendant had fully made up 'his mind to kill Whichard if he refused to pay his wages, although he may have thought that he would get his money without any trouble, but the question of premeditation and deliberation must be decided by the jury from all the facts as they may find them to be; and the slightest circumstance, forming substantially a part of the res gesteo and closely connected with the act of killing, may sometimes turn the scales in favor of the defendant.

If we are permitted to draw only that inference from the rejected testimony which is favorable to the State and unfavorable to the defendant, it may be the judge’s ruling was correct. But is this the proper method of interpretation? Where the question is one of intent, the slightest circumstance, especially where it accompanies an act of the defendant immediately preceding the homicide, may be of sufficient weight to change the verdict. The jury in this case may have, rejected the plea of self-defense and convicted the defendant, for the very reason that the testimony he offered was excluded by the court, as he was thereby left with nothing except his own testimony (viewed, of course, with some suspicion) and the State’s testimony as .to the threat alleged to have been made to J. D. Moore. If he had at one time conceived .the purpose to kill Whichard in the event of his refusal to pay him, may not the jury have found upon the rejected testimony, if it had been admitted, that he had abandoned that purpose and approached Whichard fully believing that there would be no occasion for trouble, as there was no reason why he should not be paid, which did not apply with equal-force to Will Roberson? The question was as to the state of his mind when he went to the market, where Whichard was, and not what he may have decided to do after Whichard refused to pay him, if there was such refusal. The defendant was entitled to have the jury consider every fact or circumstance tending to enlighten them upon this question. The exclusion of the evidence was tantamount to an absolute acceptance of the State’s theory and the truth of the evidence supporting it, that he went to the market for the purpose of killing Whichard if he refused to pay his -wages. It is true the rejected testimony tended to prove that the defendant went to collect his money, but this is not all it tended to prove, as I have shown.

Hoke, J., concurs in dissenting opinion.  