
    STATE v. DAVE BURNEY.
    (Filed 24 May. 1939.)
    1. Homicide § 25 — Evidence held sufficient for jury on question of defendant’s guilt of murder in the first degree.
    The evidence for the State tended to show that defendant became angered with deceased and her daughter about the daughter’s conduct, that he purchased shells for his gun and left the loaded gun at a tobacco barn on the premises, enticed deceased and her daughter to the barn, that he got into a light with the daughter, that deceased retreated toward the house, and that he thereafter shot deceased while she was in the yard, inflicting fatal injuries. Bald: The evidence was plenary to be submitted to the jury on the question of murder in the first degree.
    
      2. Criminal Law § 41a—
    Where a witness testifies that she had conversed with defendant during the trial it is competent for the State to elicit testimony explaining the reasons for such conversation.
    3. Criminal Law § 81c—
    Even conceding the implication of a question asked the witness by the solicitor was improper, an objection thereto cannot be sustained when the witness’ answer negatives the implication.
    4. Same—
    The admission of negative evidence with little, if any, probative force cannot be held prejudicial or reversible.
    5. Homicide § 20: Criminal Law § 29b — Evidence of immoral relations in defendant’s household held competent to show motive, and not objectionable as tending to impeach defendant’s character by showing commission of particular crimes.
    The evidence tended to show that defendant’s wife and several other women lived with him in his house* and worked with him on his farm. Defendant was charged with the murder of one of the women. The State contended that defendant was head of the household, sought to control deceased and her daughter as members thereof, and that he became angered with deceased and her daughter because of misconduct of which he thought the daughter guilty with another man, that they had an altercation resulting in the fatal shooting of the deceased. The State elicited testimony tending to show the relationships between members of the household and that defendant had had immoral relations with the women living in his house. Held: Exceptions to the evidence cannot be sustained, since the evidence is competent for the purpose of giving the setting and tending to show motive for the murder, defendant himself having testified to practically the same matter, and objection to the evidence on the ground that it tended to prejudice defendant in the eyes of the jurors and impeach his character by showing guilt of particular offenses, is untenable.
    6. Homicide § 27h — Court is not required to charge on question of manslaughter when there is no evidence of guilt of this degree of the crime.
    In this prosecution for homicide the State contended and offered evidence to show that defendant killed deceased after premeditation and deliberation and with malice. Defendant made conflicting contentions that he intended to shoot deceased’s daughter or that he intended to shoot a man who had made threats against him, and that in the dark he shot deceased through mistake. JSeld: The evidence, in no aspect, presents the question of defendant’s guilt of manslaughter, and the failure of the court to submit the question of manslaughter to the jury will not be held for error.
    7. Homicide §§ 2, 27g — Where party kills one person while intending to kill another, he is guilty in the same degree as though he had killed the person intended.
    Where defendant, intending to kill a certain person, by mistake inflicts fatal injuries on another, he is guilty in the same degree as though he liad killed the person intended, and therefore an instruction that if the jury should be satisfied beyond a reasonable doubt that defendant intended to kill a certain person with malice and with premeditation and deliberation and that by mistake he shot and killed deceased, defendant would be guilty of murder in the first degree, is without error.
    8. Homicide §§ 4c, 27c — Length of time elapsing between formation of fixed intent to kill and the execution of the intent is immaterial.
    An instruction correctly defining premeditation and deliberation and instructing the jury that if defendant formed a fixed design to kill a certain person, and pursuant to such fixed design kills such other person, the killing would be premeditated and deliberated, regardless of how soon the fixed design to kill is executed after its formation, is without error, ■ since it is not necessary to constitute premeditation and deliberation that the fixed design to kill be formed on an occasion prior to the fatal encounter.
    Appeal by defendant from Frizzelle, J., and a jury, at September Term, 1938, of Jokes. No erro^.
    Tbe defendant, Dave Burney, was indicted for tbe murder of Mordie Kinsey on 25 August, 1938, and entered a plea of “not guilty.” Tbe jury rendered verdict, “Tbat tbe defendant is guilty of murder in tbe first degree.” Tbe court below rendered judgment on tbe verdict, “Shall cause tbe said prisoner, Dave Burney, to inbale a sufficient quantity of letbal gas to cause tbe death of tbe said prisoner.”
    Tbe evidence was to tbe effect tbat Dave Burney was a tenant on tbe farm of Clifford Harris in Jones County. Tbe defendant bad in bis borne bis wife and tbe deceased Mordie Kinsey, her daughter, Orpbie Kinsey, Lula May Hall, Cricket Hobbs, and including grown persons and children about twenty in all. It was in evidence tbat there was bad feeling between defendant and Clyde Morgan, on account of Morgan’s attention to Lula May Hall and Orpbie Kinsey, daughter of Mordie Kinsey, all of whom weré living with and working for defendant. It was in evidence tbat on the day of tbe killing, 25 August, 1938, on bis way from Kinston in the evening, tbe defendant bad purchased some shells with No. 4 shot for a gun which be owned. On reaching home be bad Clyde Morgan take tbe gun down to the tobacco barn on the place, some quarter of a mile away. Later, about 8:00 or 8:30 o’clock tbe same night, be bad Orpbie Kinsey and her mother to go to tbe barn. There be bad a fight with Orpbie and tore some of her clothes off and she fled. He later shot her mother, Mordie Kinsey, near tbe bouse.
    Tbe following witnesses for tbe State testified, in part:
    George A. Moore: “And we sat on tbe porph and we beard some things, and we said. Soon after be came back from tbe tobacco barns be (defendant) -and whoever was with him went on down to bis home again, and I beard him cursing, and be said to someone, “G— damn you. You know all about it. I am going to kill you, G— damn you.” "Well, in just a short while, I don’t know how long, I wouldn’t like to say, but it was just two or three minutes, it seemed to me (in fact, it didn’t seem to be over a minute) I heard a gun fire. Up until that time I heard Dave cursing right loudly, but immediately after the gun fired everything was quiet down there. I heard nothing more for several minutes. And then I heard a beating noise, in two or three minutes, I guess it was, from the time I heard the gun fire, .it might have been five minutes.”
    Orphie Kinsey: “I am 21 years old and live with Uncle Dave Burney; my mother lived there also. I was eight years old when we moved there, was living there at the same time with my mother and his niece and three of we girls. One of them was his niece’s girls, and two of them were mother’s girls. To tell the truth about it, I really don’t know whether mother had any children by him while she was staying there, and she and he didn’t sleep together. Yes, he had intercourse with me one time. . . . That night he came hack from Kinston, and he told me and her (meaning her mother) to come, that he wanted to talk with us some, and me and her started with him. He didn’t say where. He had come from Kinston at 7:00 o’clock Thursday night, and we started with him at the house, and he got half way from the house to the tobacco barn, and he said, 'Orphie, you and your mother are sons of bitches, aren’t you?’ and I said, 'No, we ain’t,’ and he said, 'You is,’ and she turned around then and started back to the house or went back to the house. I don’t know what she went back for, and I went on with him, and we got to the tobacco barn door, and me and him started in to wrestling, and he throwed me down and beat me in the face. He beat me with his fist, and then I got loose from him and he tore my clothes. ... I run from there to the corn field but he didn’t run after me. . . . She (a neighbor) told me to go to Uncle Frank Greene’s, so I went there. I reckon that was a mile and a half from where we lived. . . . Since I talked to you yesterday, Dave Burney has seen me. He saw me today, right here and talked to me, hut he didn’t say anything, only asked me how the children were getting along and where I was living and everything. He was with the sheriff and told me to come on around to the jail. Q. And that’s the reason you are testifying like that? Ans.: No, sir, he didn’t ask me anything about this. He just asked me how I was getting along and how were the children. (First objection.) (Defendant objects to the question and answer; overruled, defendant excepted.) Q. Who else was there? Ans.: Cricket Hobbs. Q. Cricket is another one of his women living there? (Second objection.) (Defendant objects; overruled, defendant excepted.) Ans.: She is a girl that lives there. He raised her and she stays there. I have a baby six years old, both of them was born while I was living with Dave. Tes, I talked to Dave’s lawyer this morning. I didn’t tell yon that, because you didn’t ask me if I had talked to him. I have been living there with Dave Burney since I was eight years old, and he took care of me and treated me like he would his daughter. On the week-end before the shooting I went off and stayed, and mother didn’t know where I was and I reckon that was what he was mad with me about. ... I said I spent one night away from home. I left that way because Dave told me to go up there and stay with Lillie Foy the third Sunday before that Thursday, and when I went back home he was not there, and when he came he had a little stick in his hand, and he hit me with the stick and I ran, and he got his gun and pointed out the window. I was outside, and I got away and left that time, and that was the cause of my leaving. I had been back there before this night on which my mother was killed. I came back on Monday about 4:00 o’clock, I reckon, before she was shot on Thursday.”
    C. F. Brooks: “I live close by Dave Burney. I live on the same farm. I heard cursing. He was doing the cursing. He was cursing the woman, told her she had told a damn lie. That woman that he shot. And he said, ‘I am going to kill you.’ And about that time the gun fired, I heard some fussing down there. Something like three-quarters of an hour. Dave Burney was doing the cursing then. He was cursing Orphie. I can’t tell you what he was saying down there. He was using vulgar language. I did not go there that night. I went the next morning. I found the dress lying in the tobacco barn torn, and saw a dress with some blood on it. . . . Practically a whole dress. Torn practically all to pieces and there was buttons lying around all about all on the path. And I picked them up and gave them to the sheriff. Two pieces of underwear. ... I heard some cursing; it was at Dave’s house or right around his house, about the porch, somewhere. He was cursing people, saying that he was going to kill people about there, and that there were two or three more he was going to get, and then he was going to die and be satisfied and go to hell.”
    J. P. Taylor: “I saw the shot that came out of this woman’s body; they were No. 4’s. I got some of the wadding, but I didn’t get the shot. That was taken from the wound in the hospital on Friday. I saw the leg that was all swollen up. It was mangled and there was a hole about an inch and a half in diameter. The leg was almost cut in two.”
    Leo Kinsey: “I was not there when mamma was shot. He said, ‘Mordie, you are nearly dead, and G- — ■ damn you, I am going to finally kill you.’ He was talking to mamma then. At that time I was in the kitchen. He hit my mamma with a stool chair and a rocking chair. That was after be sbot ber. . . . Tbe door in tbe room where I was in was sbut, and in tbe middle room tbe door was open. Tbe door that I set out through was open. Nobody told me to come here and tell anything. I seed what I told, and I am positive about it. (Court) How long have you lived with Dave Burney? Ans.: I don’t know. (Court) That was your mamma who was killed? Ans.: Yes. (Court) Do you know who your father is? Ans.: No.” (Exception.) Dr. R. G. Tyndall: “I am a practicing physician and surgeon in Kinston. I remember when this woman, Mordie Kinsey, was carried to tbe hospital. I don’t know tbe date, but I remember very well tbe case. Sometime in August. . . . Her right leg from ber knee to ber shoe-top on tbe back, from tbe calf of ber leg, it was all torn wide open, and I judge it was about three-quarters — were peppered from her knee to ber ankle with about fifteen or twenty on tbe other leg at about tbe same level. They bad tbe leg all wrapped up in ber clothing and it was, of course, all saturated with blood. After tbe nurse helped me to clean out tbe wound and pull out tbe gun wadding I gave ber some stimulant for ber heart hoping that we could do something else about it. Next day we gave ber some blood, and ber leg from tbe knee down became cold from lack of circulation. And Dr. Parrot and I consulted, and we decided tbe leg would have to come off, but not in that condition. And we were hoping for some improvement in ber condition, but she gradually got worse until she died. I can’t say for certain, but it was three or four days before she died. I have an opinion satisfactory to myself as to tbe cause of ber death. It was shock and hemorrhage from tbe wound in ber leg. She is dead.”
    Sheriff J. W. Creagb: “This matter was brought to my attention on Friday, tbe 26th of August. Tbe day after tbe shooting. I went to Dave Burney’s bouse to make some inquiries, and arrested him and brought him to jail, and then went back up there and found that tbe woman was in Kinston in tbe hospital. I then went to Kinston and attempted to question ber. Dave Burney made a statement to me, and be made that statement freely and voluntarily without any reward or hope of reward or any threats. . . . That, was in my car and Dave was under arrest, and we were on tbe way to jail. I warned him of bis constitutional rights and told him that anything be said would be used against him, and I told him that again in jail. (Court) You have said you did not bold out any reward or hope of reward, or make any threats? No, sir. Dave stated that be bad sbot this woman, but that bis intentions were to shoot Orpbie Kinsey. ... I asked Mordie Kinsey if she knew ber condition and she said she knew it, and expected to die. Her statement was that she knew she might die any minute and wanted to tell tbe truth before she died. She stated that Dave Burney, when be came from Kinston, called ber and ber daughter from tbe bouse and told tbem to go witb bim, and tbat tbey went down tbe road towards tbe tobacco barn and tbat after tbey bad gotten part of tbe way to tbe tobacco barn tbat Dave and ber daughter started fighting and tbat she went back to tbe bouse. She said a few minutes later tbat she saw Dave coming back to tbe bouse and tbat she went out into tbe lot. She stated tbat Dave came out to tbe lot, to tbe barn witb a gun and tbat she saw bim. Tbe statement tbat she made me was tbat she sort of stooped, squatted, and tbat be shot ber. She stated tbat be then came out to tbe lot and dragged ber back to tbe bouse and made tbe statement, ‘G-— damn you, I haven’t killed you, but I will.’ And struck ber several times witb a chair. She said then she was put on a quilt on tbe floor, and one of those women was told to watch ber, Fannie, she called ber. And then she said, Dave left tbe bouse, and she stayed there until tbe next day about noon, when Mr. Harris came and brought ber to tbe hospital. She said tbat she was not put on a bed; tbat she was put on tbe floor on a quilt. She said tbat nothing was done for ber from' tbat time until next day at twelve o’clock. She said be struck ber witb tbe chair on tbe bead. She said tbat be cursed both of tbem and tbat be and ber daughter started fighting and she went back. Tbe lot is right at tbe bouse, Dave Burney’s bouse. I should say ten or fifteen steps from tbe bouse. Tbe tobacco barn is between a quarter and a half mile from tbe bouse. . . . She did not say Dave carried her in tbe bouse; she said be dragged ber in tbe bouse, a distance I would say of about twenty or twenty-five yards. Her statement regarding when tbey first went out, she and ber daughter together, was tbat be cursed both of tbem, but be did not make any threats. (Court) Sheriff, do you recall whether she stated be bad a gun when be requested ber and ber daughter to go witb bim in tbe direction of tbe tobacco barn? Ans.: He did not; she said be didn’t. Tbat tobacco barn tbat tbey were proceeding in tbe direction of was the same one referred to, or described by tbe witness, Clyde Morgan.” J. P. Taylor corroborated tbe testimony of tbe sheriff.
    Tbe following witnesses for defendant testified, in part:
    Clifford Harris: “I own tbe farm on which Dave Burney lives. . . . I saw Dave Burney on about August 25th. I saw bim at tbe farm and be went to Kinston witb me tbat day, tbat afternoon. I saw bim tbe next day, at my borne and in Kinston. He told me be bad shot Mordie. He asked me to go witb bim to bis borne. He told me be wanted me to go down there to see ber. I asked if she was shot badly, and be said be didn’t think so, tbat she was shot in tbe legs. And be told me to go to see ber and if we bad to take ber to tbe hospital tbat be wanted me to help to get ber there. I went. He didn’t go witb me in my car. As soon as I could get ready to go I went and be came back right behind me. Some colored woman brought him out in an automobile, and he got there in a few minutes after I got there. I saw the women. She was suffering pretty badly. She was shot in the legs, both legs; the right leg was shot worse and I told him to get her to the hospital as quickly as possible. He carried her to the hospital. He went part of the way with his colored woman, and I was behind him. I was going to make arrangements at the hospital so that they would take her in. That was about noon, I will say, and he had been to Kinston and back. He doesn’t have a car of his own. He has no means of transportation. I made arrangements at the hospital for him. He didn’t have any money. I saw Mordie at the hospital. The doctor asked her who shot her and she said, ‘Dave,’ and he said, ‘How come him to shoot you?’ And she said, ‘Accidentally.’ And he said, ‘Well, how come him to shoot you?’ And she said he was shooting at somebody else. And the doctor asked her who was he shooting at, and she said, ‘I don’t know.’ And then Dave told the doctor that he was shooting at her daughter. Dave was in the hospital when she said what she did to me, or rather, she wasn’t telling me, she was telling the doctor. That was on Friday, immediately after we got her in the hospital, about one o’clock. (Cross-examination): Q. How many women did he have there ? Ans.: Why, there was, let’s see, about five, I think, grown women. Q. And all of them have children, haven’t they? Ans.: I think so. Q. There are about twenty-odd children around there, are there not ? Ans.: Something like that. Q. And they are his, aren’t they ? Ans.: I don’t know, sir. Q. And some of them are kin to him ? Ans.: Some of the people staying there are kin to him.” (Defendant objects as this is not relevant.) (Court) “I am assuming that he is offering it on the question of motive. If that is not it, I will exclude it. On what theory is that testimony offered, Mr. Solicitor? (Solicitor) : On the theory that he was planning to get rid of this woman.” (Defendant objects to questions and answers; overruled; defendant excepts.)
    Dave Burney, the defendant, testified, in part: “Clyde Morgan was messed up with some of them girls there. They call them grown women, but there ain’t but two women there except my wife. The rest of them is nothing but children I raised up myself. Clyde Morgan got to putting a whole lot of trouble on me and got to running around and ganging around, you know, and I asked him to cut it out, and he would not do it. I said, ‘Clyde, this costs me right smart. It costs me about seventy-five dollars for one of the girls’ doctor bill, and the child died,’ and he wouldn’t help me pay a cent of it. It hadn’t been long since the child died, but me and Clyde had some words one Saturday. And one Saturday nigbt I and be bad some words about it. He kept on messing witb tbe girls, and I bad some words witb bim about it, and be got to calling me all kinds of sons of bitches, and flatheaded sons of bitches. And be said if anyone said they were bis children they lied. And I struck bim. . . . And when I saw bim witb bis gun I got mine. That made tbe third time be bad started after me witb bis gun that morning. He was biding witb bis gun on the ditch banks and in tbe cornfields ever since until this nigbt that tbe shooting took place. He threatened me. He threatened that Sunday nigbt me and bim bad words, and then again in Kinston tbe day tbe tobacco market opened I saw bim in Kinston. He came to me and wanted some money. I let bim have five dollars and got after bim about throwing bis gun after me and cussing me like be did. He said to me, ‘Uncle Dave, you know I have been going witb them girls when I got ready, and that be was going witb them right on and kill tbe bell out of me on top of it.’ That’s what be said to me in Kinston. He came back witb me. ... I did not buy any shells that day. I did not stop anywhere at any filling station. Orphie Kinsey is a girl I raised. She is a daughter of tbe woman who was shot. I did not give Clyde Morgan a gun to carry anywhere. He got out at my home. He went on home. I did not have any words witb him at my home. I did not have any words on the way home, not a word witb bim. What happened, happened mostly in town. . . . And I asked her ‘where have you been, you haven’t been home since Saturday night,’ and she said she bad been witb Miss Liza, that she was sick and wanted her to cook for her. And I bad a little stick in my band, and she jumped and ran. . . . And I got Mr. Jesse Jones to take her mother and little brother to go and see if she could find her, if she was at her Uncle Ernest’s. But she didn’t come back. And I said, ‘How did she get down there do you reckon?’ And she said she walked. And her mother was crying around all that day, and she went to look for her again that evening, and my wife went witb her. And she came back witb her. And I asked her where she bad been, and she said she was at Ernest’s. I saw Otis Roberson in Kinston, and be said. And I came back and asked Orphie that same nigbt, said, ‘Orphie, bow is it you said you stayed to your Uncle Ernest’s last Sunday.’ She said, ‘I did.’ And I said, ‘You stayed right over there at Phil Otis Roberson’s.’ And she said she didn’t. And I said, ‘Otis Roberson said you stayed witb bim, and be carried you down tbe road Monday morning.’ And that’s all I know about it, except tbe shooting. Me and Mordie and this girl goes down tbe path that nigbt. This girl was going to leave me and go stay with her uncle, and I got a lot of clothes that same day to fix for her to go tbe next day. And her uncle sent some word by her to me about what arrangements be could make to fix for her. And we were talking about that, and I got after her about the tales she told me about, the tales she said about staying to her uncle’s and she stayed somewhere else. And I grabbed her. And I don’t know whether I hit her or not, but she got away from me. I was mad with her about the tales she had told me. I hadn’t had a cross word with her mother. When she got away from me we were down the path a little ways, we were near the tobacco barn, one tobacco barn. I went back to the house and Mordie came back to the house. That’s the dead woman who came back to the house and after this girl got away from me I came back to the house. And as I came back somebody was standing at the horse lot, and I didn’t know who it was, and I took it to be Clyde Morgan, on account of the threats he had been making. It was dark. I couldn’t tell who it was. I got my gun and I shot out that way, and that’s how that woman got the load in her legs. I didn’t know the woman was out there. I went out there and got her and brought her to the house. So far as dragging her, and I may have went out and got her and she walked to the house, and she walked into the hospital when me and Mr. Harris carried her there. I didn’t intend to shoot her. Not a cross word have I had with her. I tried to get her a doctor. I done everything in this world that I could, and kept right on working until I got her to the doctor. I don’t know a thing in this world about a chair. After I discovered that I had shot Mordie I went out there and got her and brought her back and laid her on the floor on a feather-bed so she could keep cool. ... I went to the hospital with Mr. Harris. When we carried her to the hospital and put her on the hospital bench the doctor asked her who it was shot her, and I said, ‘It was me.’ That it was an accident, that she was out there and caught the load. And she said the same thing. And he said he thought she would be all right in a week, and to bring sixty dollars with me. And when I came back I got Mr. Harris to go by Mr. Hargett’s store to get me eighty dollars that a man owed me. And he was gone to Greenville, with some tobacco. And then I went and gave myself up to the sheriff. . . . Yes, I think I did look at her leg, but I didn’t see but one hole in there. I didn’t beat her over the head with a chair. It was Saturday when I wrent to' the window and pointed a gun at Orphie, but I didn’t say I would blow the day-lights out of her. When I pointed the gun at her I was just messing — that wasn’t the first time. I did start to beating her, but she ran. I didn’t lay off to have her lay out night after night and get in trouble with the men folks. The trouble I was talking about with Clyde Morgan didn’t happen a month before this. It happened about two weeks before. It was all combined together . . . Clyde Morgan was with me, and although I say he threatened to kill me in spite of that, I brought him home, because he didn’t have any way to come borne, and I bad a great big ear, but I ain’t give bim no gun. When I left with Mordie and Orpbie I bad started down tbe path to fix for tbis girl to get away tbe next day. Yes, we went towards tbe tobacco barn, but there are tobacco barns botb ways. We were about as far as from bere to tbe back of tbe courthouse along tbe path when we started to fighting. I didn’t knock her down, and I didn’t kick her. I don’t know whether I beat her in the face or not. I was so mad with her, I don’t know. I was mad because of tbe way she bad bad men laying with her, and I was mad with her because she ought to have been at work. Yes, she’s grown, and she didn’t have a right, if I bad to work in tbe field for her; I wasn’t trying to get her to tbe tobacco barn when she got away, and I say I wasn’t mad enough to bill her. I didn’t tell tbe sheriff I was shooting at her, Orpbie, not as I know of. I was so worried when I saw that woman that I didn’t have good sense. I don’t know, sir, whether I told bim that or not. My wife and my niece helped me get her in there. We went out there and got her in tbe bouse. I picked her up by tbe arms; she walked to tbe bouse with us— walking each side of her, bolding her arms. . . . Tbis is not tbe first time I have been in trouble. I shot a man’s ear, and tbe doctor bad to take it off, and it wasn’t my fault that I didn’t shoot bis bead off. ... I don’t know bow many of tbe children there are mine, but I take care of them. I have been supporting them, and tbe other fellow where helped get ’em is not taking care of them. I thought more of Mordie than anybody else out there in tbe bouse, except my wife. She wasn’t old — -only about forty. These younger women were not more attractive, and I didn’t think I could get rid of her in tbis way. I shot that night not knowing who I was shooting at, because Clyde Morgan bad been slipping around there and threatening my life with guns for two or three weeks. I was at tbe barn of tbe lot; I was between tbe bouse and the barns, and I shot and I bit bim. I told tbe sheriff I was shooting at a man, but I didn’t shoot at anybody to kill them. And they weren’t No. 4 shot; I ain’t bad any No. 4 shots in my bouse in years. No, sir, I didn’t kill her, she died. I don’t know whether tbe doctor took a shot out of her leg and that Mr. Taylor saw them, and that they are No. 4 shot. They were No. 6’s. I swear to that because I didn’t buy any other kind. There is as much truth in that as anything else I have said.”
    Lula May Hall: “I am a niece of Dave Burney. I live there with him. I was at home tbe night that tbe shooting occurred. I was there when my Uncle Dave came back from Kinston. In tbe kitchen. I did not see shooting. I did bear tbe gun fire. I saw Mordie Kinsey after tbe shooting, in tbe bouse. They brought her to tbe bouse. She walked up to tbe bouse. She was between mamma and Uncle Dave and Aunt Fannie. Sbe was put on the floor on a pallet. I stayed with her after that. I waited on her. I did not see my Uncle Dave strike her at any time. ... I am fifteen years old and had one child that died when it was thirteen months old, and his daddy was Clyde Morgan. That is what I told Dave, and that’s what Dave accused him of; Dave was not its daddy. ... I said I saw Clyde Morgan that night, but didn’t see him with a gun.”
    Carl Foy: “I didn’t hear the gun fire on August 25th over at Dave’s house. I was asleep, but my wife heard it. That same night Dave Burney came over to my house. He stopped in front of my place, and said to two of my boys for me to come down there. I asked the boy had he been drinking, and they said he had been drinking but was not drunk. I told them my wife was sick, and I couldn’t go. One of Mordie’s boys asked me if I heard the gun shoot, and I said I didn’t, and then he said, 'Well, Uncle Dave has shot mamma,’ and I told him to go back and look out for himself. Dave Burney caught me before I got to the house. When he called me to come down there my wife told me not to go. She was sick, so I went to the back door and he said, 'Come to the road,’ and I said, ‘I ain’t,’ and he said, 'You are scared,’ and I said, 'No, I ain’t scared,’ and I said, 'Come here.’ And he came there to the back and sat down at my feet and talked about ten minutes, and then he said, 'Come out here; I have got something to tell you,’ and I went about ten steps. I just had on my pants and was barefooted, and he told me, 'I shot Mordie.’ And I said, 'Did you shoot her bad?’ And he said, 'Yes, from her knees down,’ and he didn’t say whether it was an accident or not, and he said he wanted to get someone to get her to the hospital. And I said, 'You get Mr. Jones and I will do all I can.’ He didn’t have any car or any other kind of transportation.”
    The State proved by several witnesses that the general reputation of defendant was bad.
    The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.
    
      Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.
    
    
      John D. Larlcin, Jr., for defendant.
    
   ClabksoN, J.

At the close of the State’s evidence and at the conclusion of all the evidence, the defendant in the court below made motions for judgment of nonsuit. O. S., 4643. The court below overruled these motions and in this we can see no error. The evidence on the part of the State was plenary and abundant to be submitted to a jury as to the defendant’s being guilty of murder in the first degree.

Exceptions and assignments of error were made on the trial below to tbe following questions and answers (which cannot be sustained) : "When Orphie Kinsey was being examined by the State, the following-questions and answers were given: “Q. And that’s the reason you are testifying like that? Ans.: No, sir, he didn’t ask me anything about this. He just asked me how I was getting along and how were the children. Q. Who else was there ? Ans.: Cricket Hobbs. Q. Cricket is another one of his women living there ? Ans.: She is a girl that lives there. He raised her and she stays there.” This evidence was to explain the reasons why the witness was conversing with defendant. It may be that the question “Cricket is another one of his women living there?” was improper. The answer destroys the imputation, as the witness answered, “She is a girl that lives there. He raised her and she stays there.” We cannot hold this as prejudicial or reversible error.

When Clifford Harris, the defendant’s employer, was being questioned on cross-examination, the following testimony was admitted: “Q. How many women did he have there ? Ans.: Why, there was, let’s see, about five, I think, grown women. Q. And all of them have children, haven’t they? Ans.: I think so. Q. There are about twenty-odd children around there, are there not ? Ans.: Something like that. Q. And they are his, aren’t they ? Ans.: I don’t know, sir. Q. And some of them are kin to him ? Ans.: Some of the people staying there are kin to him.” When the objection was first made by the defendant it was on the ground that the testimony was not relevant. This evidence was admitted on the ground of motive. The State’s evidence was to the effect that defendant had purchased shells with No. 4 shot and had sent the gun to the tobacco barn and had later had Orphie and her mother, Mordie Kinsey, to go down there with him. Defendant was drinking, cursing, and had a fight with Orphie Kinsey. He tore her clothes. The mother went back towards the house and he shot her. Defendant himself, in his testimony, gave the members of his household. Defendant was angered with Orphie, the daughter of the deceased woman. Orphie had left the home. The reason is given in his testimony. It seems that his motive was to control Orphie and her mother who lived with him — he was head of the household of women and children. On the whole we do not think the evidence prejudicial or reversible error.

The following questions were asked Leo Kinsey, a son of the deceased woman: “Q. How long have you lived with Dave Burney ? A. I don’t know. Q. That was your mamma who was killed? Ans.: Yes. Q. Do you know who your father is? Ans.: No.” This evidence is mainly negative and has little, if any, probative force. "We see in it no prejudicial or reversible error.

The defendant contends that all of this evidence was prejudicial and was incompetent, reflective of defendant’s character under the principle laid down in S. v. Bryant, 189 N. C., 112, and S. v. Shinn, 209 N. C., 22. The Bryant case was decided on the ground that it impinged C. S., 564. At p. 115, it is said: “If we treat the remarks made by the presiding judge to the witnesses, Loudermilk and Henson, as harmless and inadvertences, we are still confronted with the expression, ‘This witness has the weakest voice or the shortest memory of any witness I ever saw.’ —language which was clearly susceptible of any construction that the testimony of the witness was at least questioned by the court, if not unworthy of credit. The fact that exception was not entered at the time the remark was uttered is immaterial. The statute is mandatory, and all expressions of opinion by the judge during the trial, in like manner with the admission of evidence made incompetent by statute, may be excepted to after the verdict. Broom v. Broom, 130 N. C., 562.”

In the Shinn case is the following (at pp. 23-4) : “S. J. Critz, who had testified as a witness for the defendant, on his cross-examinatioii by the solicitor for the State, testified that he knew the general reputation of the witness, Luther Mesimer, and that it was ‘pretty good.’ He was then asked the following questions by the solicitor for the State: ‘Q. How many times has Luther Mesimer been up in court ? Ans.: Two or three times. Q. In the last six years, hasn’t he been involved in affrays with deadly weapons at least half a dozen times, and isn’t that his reputation? Ans.: I don’t know how many times — several times. Q. Didn’t he serve 8 months sentence for an assault with a deadly weapon, to wit: a knife?. Ans.: Yes, sir.’ The defendant’s objections to these questions and the answers thereto, all made in apt time, were overruled, and the defendant excepted.” The Court granted a new trial, basing its decision on S. v. Holly, 155 N. C., 485. In that case, at p. 490: “Dr. Bell, a witness for the State, testified upon cross-examination that the general character of the defendant was good. Upon the re-direct examination the witness was asked by the State if he had not heard that the prisoner had been accused of killing his wife. The witness answered ‘Not until after the present charge was brought.’ To this question and answer the defendant objected and excepted.” At p. 492-3, speaking to the subject, it is said: “If one collateral question of this character can be raised and tried, the same rule would permit a hundred others. The authorities in this State are numerous and uniform that it is error to allow such questions on the cross-examination of a witness as to character. In Barton v. Morphes, 13 N. C., 520, it was held inadmissible to ask ‘if he had not heard Morton accused of stealing a penknife’; in Luther v. Skeen, 53 N. C., 357, that ‘there was a current report in the neighborhood that plaintiff had sworn to lies while living in Randolph’; in S. v. Bullard, 100 N. C., 487, 'Do you not know that it was extensively talked about and said that the defendant practiced a fraud upon the firm of Worth & Worth?’; in Marcom v. Adams, 122 N. C., 222, 'Have you not heard that defendant had committed forgery ?’, 'Do you not know that the defendant had been indicted for forgery ?’; and in Coxe v. Singleton, 139 N. C., 362, 'Have you not heard that the defendant committed rape on a Negro girl?’, 'Have you not heard he padded his pay-roll at the mill ?’ ” (At p. 494) : “That the evidence was prejudicial cannot be doubted. The prisoner was charged with murdering, by poison, a member of his household, and the evidence was circumstantial. It was calculated to excite feeling against him in the minds of the most intelligent and upright jurors to know that he had been charged with killing his wife.”

The evidence in the present case, which was objected to, tended to show motive. It gave the setting. Defendant was head of the household — a tenant with a large force to work the crops. The evidence indicated that he attempted to control Orphie Kinsey, who had left home, and her mother, Mordie Kinsey, the deceased. The defendant practically admitted all the testimony objected to. We cannot hold it prejudicial or reversible.

The defendant contends that the court in its charge did not present for the jury’s consideration, manslaughter. The court below gave an accurate charge as to burden of proof, reasonable doubt, malice, premeditation and deliberation; what constituted murder in the first degree, the second degree, and stated fully the evidence and law applicable to the facts on which aspect the jury could return a verdict of not guilty. The evidence and contentions were fairly set forth on both sides of the controversy. The court below charged the jury: “Now, the court instructs you, gentlemen, that under the bill of indictment, and under the evidence offered in support of the bill of indictment, the jury can render one of three verdicts, to wit: guilty of murder in the first degree; guilty of murder in the second degree; or not guilty. There is no evidence to warrant the court in submitting to the jury the question of manslaughter!” From a careful review of the evidence which is in the record, without repeating same, we cannot see any element of manslaughter. The facts in this case are distinguishable from the cases of S. v. Kennedy, 169 N. C., 288, and S. v. Robinson, 188 N. C., 784, cited by defendant.

In 4 Warren, Homicides (1938), p. 447, is the following: “Where there is no evidence of passion and where one of two theories only can be accepted by the jury, either that of murder or self-defense, the defendant is not entitled to an instruction on manslaughter,” etc. S. v. Byers, 100 N. C., 512; S. v. McKinney, 111 N. C., 683; S. v. Johnson, 172 N. C., 920.

In S. v. McKay, 150 N. C., 813 (815), it is written: “The court further instructed the jury that they should return a verdict of murder in the first degree, murder in the second degree, or not guilty. There was no evidence in the case to reduce the crime to manslaughter, and therefore it would have been improper for the judge to have submitted to the jury a view of the case unsupported by any testimony whatever. S. v. Hicks, 125 N. C., 636; S. v. White, 138 N. C., 704.” S. v. Dixon, ante, 438.

The following exception and assignment of error made by defendant cannot he sustained: “It is largely a question of fact for you gentlemen. If you reject and refuse to accept, to adopt the defendant’s theory of the case, and upon all of the evidence in the case you should be satisfied upon the evidence beyond a reasonable doubt that he did shoot the deceased, mistaking her for Orphie Kinsey; that he intended to shoot Orphie Kinsey and to kill her, and if you find that he did it with malice aforethought and with premeditation and deliberation, then the court instructs you that as a matter of law he would be guilty of murder in the first degree, because under the law of this State, where a person with malice aforethought and with premeditation and deliberation intends to kill some particular person, hut through mistake kills another, he is just as guilty as if he had killed the person he intended to kill.”

In "Wharton on Homicide (3rd ed.), part sec. 359, p. 574, is the following, which is well settled law in this jurisdiction: “The rule is nearly, if not quite, universal that one who kills another, mistaking him for a third person whom he intended to kill, is guilty or innocent of the offense charged the same as if the fatal act had killed the person intended to be killed.”

In S. v. Sheffield, 206 N. C., 374 (382), speaking to the subject, is the following: “In Wharton’s Criminal Law, 12th ed., Vol. 1, part sec. 442, pp. 677-678, we find: ‘Where A. aims at B. with malicious intent to kill B., but by the same blow unintentionally strikes and kills O., this has been held by authorities of the highest rank to be murder.’ S. v. Benton, 19 N. C., 196; S. v. Fulkerson, 61 N. C., 233; S. v. Cole, 132 N. C., 1069.”

The court also charged the jury correctly in regard to defendant’s testimony in reference to thinking he was shooting at Clyde Morgan, who had made threats against him.

The court charged the jury as follows: “Murder in the first degree is the unlawful killing of a human being with malice aforethought and with premeditation and deliberation. Premeditation means to think about beforehand for some length of time, however short. Deliberation means to think about, to revolve over in one’s mind and weigh. A person forms a purpose to kill another and weighs this purpose in his mind long enough to form a fixed design to kill at a subsequent time, no matter how soon, nor how late. And pursuant to said fixed design kills said person; this would be a killing with premeditation and deliberation. And when done with malice would constitute murder in the first degree. A fixed purpose to kill means preceding the act of killing, although the length of time between the time it is formed and carried into effect is immaterial.” Defendant excepted and assigned error, which cannot be sustained. S. v. Bowser, 214 N. C., 249 (253).

In S. v. Dowden, 118 N. C., 1145 (1153), it is said: “If the prisoner weighed the purpose of killing long enough to form a fixed design to kill, and at a subsequent time, no matter how soon or how remote, put it into execution, there was sufficient premeditation and deliberation to warrant the jury in finding him guilty of murder in the first degree. S. v. Thomas, ante, 181; S. v. Norwood, 115 N. C., 790; S. v. Covington, 117 N. C., 834; S. v. McCormac, 116 N. C., 1033. This Court has not followed the intimations of some of the courts of other states that, in order to constitute deliberation, there must be evidence of a definite design formed on some occasion, previous to the meeting at which the killing was done, and cherished up to and at the time of putting it into execution. The court properly told the jury that where the intent to kill was formed simultaneously with the act of killing the homicide was not murder in the first degree. This was but another mode of expressing the rule that there must be a preconceived and definite purpose to kill, the question of the time that elapses between the determination to kill and the killing being immaterial.” S. v. Hawkins, 214 N. C., 326 (334).

From the entire record we can find no prejudicial or reversible error. The defendant drinking and maddened by the troubles, or fancied troubles, with Orphie Kinsey and her mother, who were living at his home — Orphie having left his home and come back — purchased No. 4 shells for his gun the evening of the homicide and sent the gun to the tobacco barn loaded. Defendant enticed Orphie and her mother to go to the barn; near the barn defendant and Orphie got into a fight in which he nearly denuded her but she escaped. The mother retreated towards the house and while in the yard defendant shot her as she crouched on the ground. The shot that hit her and from which she died was No. 4. The whole record discloses a “jungle” situation— liquor, women and the sequel murder.

In the judgment of the court below, there is

No error.  