#### STATE v. AVERY KALE.

(Decided April 25, 1899).

Indictment for Murder — 1st and 2nd Degree — Voluntary Intoxication.

1. Voluntary drunkenness is never an excuse for the commission of a crime.

2. If one charged with murder has premeditated and deliberately formed the intention to kill, and did kill the deceased, when drunk, the offence is not reduced to murder in the second degree.

3. Of course, the killing and its manner, the intent, intoxication, how it comes about, and for what purpose drunkenness takes place, and the like, are questions for the jury under the Court’s instructions as to the law applicable thereto.

INDICTMENT for murder of George Travis, tried before Goble,, J., at Eall Term, 1898, of tbe Superior Court of Catawba County.

Tbe prisoner and deceased were in tbe employment of A. S. Alley, wbo ran a government distillery in Catawba County in 1898. There ivas evidence that tbe prisoner entertained bad feelings towards the deceased, on account of tbe deceased having supplanted him in his position at tbe distillery, and because of his being a witness on an indictment at Court against him.

*817Tbe prisoner was given to bad spells of drinking and bad repeatedly uttered threats against tbe deceased. On 13th August, 1898, the prisoner bad been drinking some, and went with bis gun to tbe still bouse inquiring for George Travis and threatening to kill him. Travis was in tbe still bouse and in about two minutes after prisoner bad entered the report of a gun was beard inside, and prisoner came out saying be bad billed tbe d-d scoundrel. Travis was found by witness who immediately entered, tbe still bouse, mortally wounded with shot in the bead and unconscious. He died tbe next day. Tbe prisoner left tbe State and was brought back from Florida by tbe sheriff.

No evidence was offered on part of tbe defense.

His Honor gave all tbe special instructions asked for by tbe prisoner except tbe 5th which was refused; it was as follows:

5th. That if tbe jury believe from tbe evidence that tbe defendant had been drinking to excess during tbe week in which tbe homicide occurred; that at tbe time of tbe committing the homicide was intoxicated, and by reason of these facts, they believe that tbe homicide was tbe rash act of a drunken man, rather than tbe vicious act of a sober man, then tbe prisoner would not be guilty of murder in tbe first degree.

To tbe refusal of bis Honor to give this special instruction tbe prisoner excepted. Tbe charge of bis Honor was very elaborate — defined tbe various grades of homicide, and presented the ease in its various phases presented by tbe evidence to tbe consideration of the jury, and elicited tbe encomium expressed in tbe opinion of its faithful compliance with Section 413 of Tbe Oode relating to tbe duty of a trial Judge.

Tbe jury rendered a verdict of guilty of murder in tbe first degree.

■ Tbe sentence of death was passed upon tbe prisoner — and be appealed.

*818 Messrs. Feimster & Yount, for appellant.

Mr. Zab V. ITwiser, Attorney General, for tbe State.

Eaiecloth:, 0. J.

Tbe defendant was indicted and convicted of murder in tbe first degree. Tbe first exception is that tbe Judge failed “to state in a plain and correct manner the evidence given in tbe case and declare and explain the law arising thereon” as required by Section 413 of Tbe Code. This Section imposes an important duty on tbe Judge and one of vital interest to tbe defendant when on trial under a charge of a capital felony.

We have carefully read tbe evidence in detail and tbe charge. The charge is elaborate, calling attention distinctly to each grade of tbe offence of murder and manslaughter, with distinct instructions bow tbe jury should find, according to their understanding and belief of tbe evidence. It is a faithful compliance with Section 413, and this put tbe first exception out of tbe way.

Second exception: That bis Honor erred in refusing to give defendant’s fifth prayer for special instructions. That prayer was in these words: “That if tbe jury believe from tbe evidence that the defendant had been drinking to excess during tbe week in which tbe homicide occurred, and that at tbe time of committing tbe homicide, was really intoxicated, and if by reason of these facts they believe tbe homicide was the rash act of a drunken man rather than the vicious act of a sober man, then tbe prisoner would not be guilty of murder in tbe first degree.” Condensed, this means if tbe prisoner was really intoxicated when tbe rash act was committed, be would not be guilty of murder in tbe first degree.

As a legal proposition this prayer could not be given, because it leaves out of view the consideration whether tbe *819prisoner had made himself drunk for the purpose of executing a premeditated, wicked intent to kill, or whether he availed himself a drunken condition to execute • a premdi-tated resolution to do the act.

If one voluntarily becomes drunk and kills, without justification, he is guilty of murder. State v. Wilson, 104 N. C., 868. The test of -accountability is the ability of the accused to distinguish right from wrong and that in doing a criminal act he is doing wrong. When killing with a deadly weapon is admitted or proved the law implies malice and the burden of showing the absence of malice is upon the defendant. Drunkenness at the time the crime is committed, nothing else appearing does not repel malice nor lower the grade of the crime. The law recognizes the dethronement of reason, as in insanity for instance, as an excuse. State v. Potts, 100 N. C., 457. “Voluntary drunkenness is never an excuse for the commission of a.crime.” State v. Keath, 83 N. C., 626. If one charged with murder has premeditated and deliberately formed the intention to kill and did kill the deceased, when drunk, the offence is not reduced to murder in the second degree. State v. McDaniel, 115 N. C., 807. Of course the killing and its manner, the intent, intoxication, how it comes about and for what purpose drunkenness takes place, and the like, are questions for the jury under the Court’s instructions as to the law applicable thereto.

There was evidence of the prisoner’s declared purpose and intent at different times to kill the deceased, tending to show deliberate premeditation. One witness testified that the “prisoner had some bad spells when he got liquor in him.... Prisoner had several drams that day and had been drinking all'-the week. lie got one bottle of liquor that day.” This was the only evidence offered to show intoxication: No witness said he was drunk when he fired the fatal shot, and there was no evidence of provocation.

*820His Honor, after charging tbe jury as before stated, said: “The jury will consider the facts and circumstances, connected with the homicide and proved in the case, to determine whether the killing was the outgrowth of premeditation and deliberation. . . .The jury will consider all the evidence, and if the State has shown beyond a reasonable doubt that the prisoner intentionally killed the deceased-and that he did it in pursuance of a fixed purpose and intent to kill him, joined with deliberation and premeditation, then the jury will find the prisoner guilty of murder in the first degree.” When the jury were instructed to “consider all the evidence” we must assume that the evidence of drinking or drunkenness relied on by the prisoner passed in review, and was considered by the jury, that is, to what extent it existed, if at all, and its bearing upon the alleged premeditated purpose and present purpose of the prisoner, before their verdict was rendered.

Wo have given the case appearing in the record our best attention and fail to find anything in the course of the trial prejudicial to the prisoner's rights.

Affirmed.