
    STATE v. McDOWELL.
    (Filed November 12, 1901.)
    .1. EVIDENCE — Opinion Evidence — Competency.
    Whether there was light enough for the prisoner to see the deceased at time of killing is not an expression of opinion.
    2. EVIDENCE — Bes Gestae — Competency.
    Evidence as to what prisoner on trial for murder said to a party, after the shooting is not competent unless a part of . the res gestae.
    
    3. CONFESSIONS — Admissibility.
    Where a prisoner denies knowing anything about the killing, such statements are not inadmissible as confessions.
    
      i. INSTRUCTIONS — Charge-—Judge.
    
      , Where the trial judge in his general charge gives “every reasonable contention of the State,” it is erroneous to- give an entirely new charge, containing “a powerful summing up” for the state'.
    5. EVIDENCE — Weight—Expression of Opinion "by Judge — The Code, Bee. J¡18.
    
    The instructions in this case are erroneous as expressing an opinion on the evidence.
    .6. INSTRUCTIONS — Charge—•Misstatement of Evidence by the Court.
    
    An incorrect and unfair statement of evidence against prisoner by the trial judge is erroneous.
    7. WITNESSES — Evidence—Near Relations — Instructions.
    It is error to instruct the jury that because of relationship the jury should carefully scrutinize the testimony, loithout adding that, if the jury believed the testimony it should have the same weight as if the witness was not interested.
    INDICTMENT against Jim'McDowell, beard by Judge T. A. 
      
      McNeill and a jury, at July (Special) Term, 1901, of the Superior Court of RobesoN County. From a verdict of guilty and judgment thereon, the defendant appealed.
    
      B. D. Gilmer, Attorney-General, and McLean & McLean, for the State.
    
      Wade Wishart, W. D. Bizell, and B. E. Lee, for the defendant.
   Eueches, C. J.

The prisoner was indicted for the murder of one Harlee Leak, convicted of murder in the second degree, sentenced to ten years in the penitentiary, and appealed. And this being a Court of errors, we can only consider the errors of law presented by the record.

There are several exceptions to the rulings of the Court upon the evidence, none of which can be sustained.

The witness James Jenkins was asked by the State: “Was it light enough for defendant to have seen deceased as he passed out of the house and know who he was ?” To the question the prisoner objected, and upon his objection being overruled, excepted. This exception is put upon the ground that the question “involved the expression of an opinion by the witness,” and State v. McLaughlin, 126 N. C., 1080, is cited as authority for this contention. But we do not think McLaughlin’s case sustains the exception. In that case two statements of the evidence were made, and the witness was asked and allowed to' testify that in his opinion they were substantially the same. This was purely a matter of opinion, and invaded the province of the jury. Not SO' in this case, which was a statement of what he knew by sight, and not what he believed by the exercise of his mind and powers of reasoning.

The next exception is to the exclusion of what the prisoner said to J ames Jenkins after the shooting. This exception can. not be sustained, as it does not appear to be a part of the res gestae, nor does it appear to be as to a conversation between the witness and Jenkins, about which Jenkins had testified.

Another exceptions is to the evidence of Sheriff McLeod at the time he arrested the prisoner. It appears that the Sheriff and three other men went to the house of the prisoner about 11 o’clock the night the deceased was killed, for the purpose of arresting him. The door was closed, and the Sheriff pushed it open, and he and the three persons with him, acting as his deputies went-in and found the prisoner standing near the foot of the bed. They drew their pistols, told him that he was their prisoner, and to throw up his hands, ■which he did, and. asked what was the matter. The Sheriff replied, “You know what is the matter; you have killed Harlee Leak.” To this the prisoner replied: “That he had not done anything of the kind. He said he had not had his pistol; it had been home with his wife. He didn’t seem to know much about the shooting.” The evidence was received over the objection of the prisoner, upon the ground .that it was not a confession obtained through fear. But the prisoner contended that it should not have been admitted under the rulings of this Court in the cases of State v. Dildy, 72 N. C., 325, and State v. Davis, 125 N. C., 612. It does not seem to us that either of these cases sustains the exception. In the case of State v. Davis, the defendant was arrested by one Conrad, and, while under arrest, Conrad said to him: “That he had worked up the case, and he had as well tell all about it.” At first the defendant denied any knowledge of the alleged stolen articles, but afterwards said that another person had brought them into his house, and this evidence was held to be incompetent. But Davis’ case differs from this in two respects. In that case the defendant was induced to make the confession by being told by the officer that he “had worked; up the case, and he had better tell all about it"; while in this, ■case nothing of the kind is said to the prisoner, but he volun-. teered to say what he did. But a greater distinction is that. in this case there was no confession. The prisoner denied, all knowledge of the killing, and it is difficult to see how this could be considered a confession of the crime.

There are other matters shown by the record which have given us trouble. It appears from the evidence offered by the prisoner that other shots were fired than those fired by the prisoner, and from different directions. There is also evidence tending to show that if the deceased was killed by the: prisoner, he would have been shot in the back; while the evidence is that he was killed by a shot from the front. It is also in evidence from the Sheriff and othres with him at the time of the arrest, that the prisoner’s pistol, freshly fired, was '■ a 32 Iver & Johnson pistol. This evidence was undisputed- and uncontradicted. G. W. Waddell took the witness-stand-with his scales, and in the presence of the Court and jury-proceeded to weigh the bullet that killed the deceased, and to. weigh one taken from the prisoner’s pistol by the Sheriff.. The bullet that killed the deceased weighed 105 grains, and . the bullet taken from the prisoner’s pistol by the Sheriff, when - he arrested the prisoner, weighed but 85 grains; and the witness Waddell testified that the bullet which killed the de■ceased could not have been shot out of a 32 Iver & Johnson pistol. This evidence was uncontradicted. And we find that, at the request of the prisoner,, the Court charge.d the jury: “That if you find from the evidence that the deceased came to his death by a bullet which could not have been fired from an Iver & Johnson 32 cal. pistol, you should acquit the prisoner.” But they found him guilty. We suppose they did not believe this undisputed testimony of the witness Wad-dell. The prisoner asked several instructions, all of which. were given but one, and that one should not have been given. > The State asked several special instructions, all of which were given and excepted to by the prisoner; and the case states: “His Honor, after having stated to the jury, in his general charge, every reasonable contention of the State, gave the following special instructions asked by the State:

“1. The prisoner, Jim McDowell, is charged in the indictment with murder in the first degree. Under the,indictment, the jury may find a-verdict of murder in the first degree or the second degree, or manslaughter, or not guilty, accordingly as the jury may find the facts to be from the evidence produced upon the trial. If the State has satisfied you beyond a reasonable doubt that the prisoner slew the deceased with a pistol, as contended for by the State, then the law presumes that the prisoner is guilty of murder in the second degree, and the burden shifts to the prisoner to satisfy the jury, not beyond a reasonable doubt, but simply to satisfy the jury of such mitigating circumstances as are sufficient in law to mitigate and reduce the murder in the second degree to manslaughter. This instruction was given, and prisoner excepted.
“2. If you find beyond a reasonable doubt from the evidence in this case that the prisoner slew deceased with a pistol, and if the prisoner has failed to show to the satisfaction of the jury such mitigating circumstances as in law would reduce the killing to manslaughter, then the jury should find a verdict of murder in the second degree. Given. , Prisoner excepted.
“3. The first thing for you to decide is, did the prisoner slay the deceased, as is alleged by the State, and the State relies on the following testimony to sustain its contention that the prisoner actually slew the deceased: The evidence of Dave Sammons, who was with the deceased at the time he was shot; Jim Jenkins, who was with the prisoner at the time he fired the pistol; John Leak, who testified as to threats on the afternoon before the killing; of Mary Eaulk, who testi-tied as to bearing three shots in the direction of Jim Jenkins’ house; of Have Love, who heard three shots in the direction of Jim Jenkins’ house, and who> also testified that he examined pistol found in possession of prisoner after the killing, and which had been recently shot; of Sheriff McLeod, who examined the pistol fo-und in the possession of prisoner; of Jim French, who was immediately behind the prisoner when he fired the pistol, and other evidence tending to show that the shot which struck Harlee was fired from the direction of Jim Jenkins’ house, in which direction the prisoner was at the time of the shooting. The State also relies upon what it claims were contradictory statements made by the prisoner immediately after the killing, and to the fact that he admitted going home by an unusual and different route, and by his denying any knowledge of the death of Harlee Leak at the time he was arrested, and also upon the evidence of Jay Barnes and Frank Barnes, who swore that three shots were fired, and that they were in the direction of Jim Jenkins’ house.. If you are satisfied beyond a reasonable doubt that the prisoner killed the deceased, then you will proceed to determine whether the crime be murder in the first degree, second degree or manslaughter. If you find from the evidence, beyond a reasonable doubt, that he did the killing as alleged, with a pistol, nothing else appearing, you should render a verdict of murder in the second degree. Before you can render a verdict in the first degree, the State must prove to you, further beyond a reasonable doubt, that the killing was wilful, deliberate and premeditated. It is not necessary that the purpose or design to kill should exist for any particular length of time, but that it must have existed before the killing; otherwise it would not be murder in the first degree. The testimony relied on by the State to show murder in the first degree is that of John Leak, that on the afternoon of the' day on which Harlee Leak was killed, the prisoner and deceased bad a quarrel in. tbe barber shop in tbe town of Lum-berton; tbat prisoner told deceased on leaving tbat be would get bim, tbe exact language wbicb you will find in tbe testimony of John Leak, and also upon evidence of Jim Jenkins,, in wbicb be testified as to tbe alleged statement of tbe prisoner tbat he- went to Jim Jenkins’ bouse tbat nigbt to kill some damned son-of-a-bitch, and also upon tbe evidence of Jim Jenkins to tbe effect tbat at tbe time tbe prisoner shot, tbat Harlee Leak was about twenty-one steps in front of bim in tbe lane, and tbat tbe prisoner bad walked some distance after leaving Jim Jenkins’ bouse behind Harlee Leak in tbe lane before tbe killing took place. You will remember tbe evidence as to these matters according to tbe testimony of tbe witnesses as produced upon tbe trial.. It is your duty to decide these facts, to pass upon tbe weight of tbe testimony, to say whether it is to be believed or not, to say tbat it established certain facts or it does not. In weighing tbe testimony, it will be your duty to consider tbe interest of any witness, if you find there is any; to consider tbe conflicting statements, if there are any; to consider tbe demeanor of tbe witnesses upon tbe stand, and to consider any facts or circumstances wbicb tend to uphold or discredit any of tbe testimony of any of tbe witnesses. As before stated, if you find beyond a reasonable doubt tbat tbe prisoner slew deceased with a pistol, and if you find further tbat tbe killing was wilful, deliberate and premeditated, and if you find these facts beyond a reasonable' doubt, then you will render a verdict of murder in tbe first degree. On tbe other band, if you find beyond a reasonable doubt tbat tbe prisoner slew deceased with a pistol and tbe killing was not deliberate or premeditated, then you will render a verdict of murder in the second degree, unless you find tbat the prisoner was guilty of manslaughter, or tbat tbe killing was tbe result of an accident. State v. Booker, 123 N. C., 713. This instruction was given, and defendant excepted.
“4. If you find from tbe evidence, beyond a reasonable doubt tbat tbe prisoner slew deceased as alleged by tbe State, and if you find tbat tbe killing was without deliberation and premeditation, and if you find tbat tbe prisoner did not intend to kill deceased, but if you go further and find from tbe evidence tbat prisoner discharged bis pistol down tbe lane, as alleged by tbe State, toward tbe crowd of people in tbe lane, without regard to the consequences of bis act, then be will be guilty of manslaughter. State v. Vines, 93 N. C., 493. This instruction was given, and prisoner excepted.
“5. If you find from tbe evidence, beyond a reasonable doubt, tbat tbe prisoner discharged bis pistol carelessly and recklessly and unlawfully, and tbat be killed deceased in such manner accidentally, still it would be manslaughter, and if you so find from tbe evidence, you will return a verdict of manslaughter. In such^ cases tbe test of responsibility depends lipón tbe conduct of tbe party accused, was unlawful, or even if it was not unlawful, if it was-so grossly negligent, reckless or violent as necessarily to imply moral impropriety or turpitude. State v. Vines, 93 N. C., 493. This instruction was given, and tbe prisoner excepted.
“6. Tbe Court charges you tbat if you find beyond a reasonable doubt tbat tbe prisoner discharged bis pistol among a crowd of people in tbe lane near Jim Jenkins’ bouse, knowing at tbe time tbat there were people in front of him, and if you find further beyond a reasonable doubt tbat tbe pistol was discharged, causing tbe death of Harlee Leak, then tbe prisoner would be guilty of manslaughter, even if be did not intend to. do any barm to any particular person, or even if be intended it only in sport or to frighten someone. State v. Vines, 93 N. C., 493. This instruction was given, and prisoner excepted.
“1. It is tbe duty of the jury, in passing upon tbe evidence of tbe prisoner himself, and of bis near relatives who testified for bim, to scrutinize tbeir evidence with great caution, considering their interest in the result of the verdict, and, after so considering, the jury will give to it such weight as they may deem proper. This instruction was given, and prisoner excepted. Signed by C. M. McLean, Solicitor; McLean & McLean, Proctor & McIntyre, and John D. Shaw, Jr., associate counsel for State.”

The case on appeal states that the whole evidence in the case has been sent up, and we have read the whole of it. And from the view we have taken of the case, we thought it proper to insert in full the prayers of the State for special instructions.

We can not think the manner in which the trial was conducted is the ordinary practice of the Courts of this State. That after his Honor “had stated to the jury in his general charge every reasonable contention of the State, he should, at the request of the State, give an entirely new charge commencing: “The prisoner, Jim McDowell, is charged in the bill of indictment with murder in the first degree,” etc. This charge, written by the attorneys for the prosecution, is a powerful summing up for the State. It does not pursue the usual course, in asking special instructions, by asking the Court to charge some proposition of law predicated upon some fact the evidence tends to prove, but, as we have said, it is a powerful summing up of the whole argument for the State, after the Judge had “stated to the jury in his general charge every reasonable contention of the State.” This, we think, was calculated to prejudice the prisoner’s case with the 'jury, if every word of this charge was correct. But there are some expressions in this charge that are objectionable as matters of law. In the third prayer the Court says, in summing up: “The evidence of Dave Sammons, who was with the deceased at the'time he was shot; Jim Jenkins, who was with the pris oner .at the time he fired the fistolj Jim French., who was immediately behind the prisoner when he fired the pistol.”

The prisoner, on cross-examination, testified: “I went home by the old bridge. Jim McQueen was with me. We went some out of our way.”

And the Court, in this summing up, in giving the grounds relied on by the State, says: “The fact that he admitted going home by an unusual and different route.” This reads like the argument of counsel to a jury. But it is not a correct and, as we think, not a fair statement of the prisoner’s evidence.

It seems to- us that the statements as to Dave Sammons, Jim Jenkins and Jim French were a violation of section 413 of The Code; and the statement as to the admission of the prisoner is incorrect and calculated to prejudice him in his defense.

In the seventh prayer, which was given, the Court, after instructing the jury to “scrutinize the evidence of the prisoner s relations with great caution, considering their interest in the result of the verdict, and, after so considering, the jury will give to it such weight as they may deem proper.” This charge is a very common one, and when applied to witnesses on both sides and properly applied by the jury, may do no harm. But the scrutiny referred to is for the purpose of aiding the jury in determining the credit of the witnesses, as the jury are to pass upon that, whether the witness is interested or not. If they find the witness to be credible, and that he has sworn the truth, his testimony should have the same weight as if he was not interested; and it was error in the Court, when charging the jury upon the subject of interest, not to so have charged the jury. This, as all the other special prayers of the State, was excepted to^ and the exception must be sustained. State v. Collins, 118 N. C., 1203; State v. Holloway, 117 N. C., 730; State v. Lee, 121 N. C., 544; State v. Apple, 121 N. C., 584.

Error. New Trial.

Clare, J.,

concurring. Though a Judge may think he has fully charged the contentions of both sides, when correct prayers for instruction are asked by either, it must rest in his sound discretion whether to give them or take the risk of their having been substantially given already in the charge. If the charges in themselves are correct, he is not forced to refuse them because he may think they have been already given, and thus subject the public to the expense of a new trial, if (as precedents show) ingenious counsel can find that every point therein made was not given in the main charge. Here, the Judge gave every charge asked by defendant (save one, which was properly refused), though he had given substantially his prayers in the main charge. The fact that the State could not appeal from errors against the State, properly did not prevent him from showing equal liberality in giving instructions asked by its representative.

I think, however, there was error in those instructions in the two particulars pointed out in the opinion of the Court, and concur in the result on that ground alone.

MoNtgomeey, J.,

concurring. He thinks that the defendant was prejudiced in his trial, as set out in the opinion in chief, by the second charge of his Honor — the giving of the special instructions of the Solicitor and his associate counsel. Hut he further thinks that the harm that may have been done can not be corrected by this Court as an error in law. He concurs in the result.  