#### STATE v. ADAMS.

(Filed May 23, 1905.)

Homicide — Evidence as to Other Grimes — Circumstantial Evidence — Footprints—Motive—Practice.

1. The rule that evidence as to one offense is not admissible against a defendant to prove that he is also guilty of another and distinct crime, is subject to well defined exceptions, to-wit: it is admissible to produce evidence of a distinct crime to prove sci-enter, to make out res gestae or to exhibit a chain of - circumstantial evidence of guilt in respect to the act charged.

2. No particular formula or set of words is required in regard to the force of circumstantial evidence, and it is sufficient if the judge charges the jury in substance that i he law presumes the defendant to be innocent and that the burden is upon the State to show his guilt and that upon all the testimony they must be fully satisfied of his guilt.

3. It is not necessary that footprints should be identified in any particular manner, nor in an instruction to the jury thereon is there any fixed phrase of the law applicable to all cases.

4. The existence of a motive may be evidence to show the degree of the offense, or to establish the identity of the defendant as the slayer, but motive is not an essential element of murder in the first degree, nor is it indispensable to a conviction, even though the evidence is circumstantial.

5. In an indictment for murder, where the State relies upon a motive, such as robbery, it is not necessary to prove that the prisoner at the time of the killing knew the fact from which the alleged motive may be infewed.

6. In a criminal action, the court is not required to select a single fact from the mass of the testimony, and charge" the jury that the -proof as to that must exclude every reasonable hypothesis except the defendant’s guilt.

INDICTMENT against Will Adams for murder, beard by Judge Fred Moore and a jury, at tbe January Term, 1905, of tbe Superior Court of Waee County.

*689This case was before us at a former term when we ordered a new trial for tbe reason stated in tbe opinion of tbe court. 136 N. O., 611. Tbe defendant was indicted in tbe court below for tbe murder of Mary Bridgers on Friday, January 22, 1904. Tbe testimony tended to show tbat Eobert Brid-gers and bis wife (tbe deceased) and tbeir three' children lived in a bouse off tbe public road and about a mile and a half from tbe defendant’s borne. Tbe defendant bad passed Bridgers’ bouse and inquired of him bow much money be had made. Bridgers told him be made $300. Defendant afterwards asked Bridgers to change ten cents, which Brid-gers refused to do, saying tbat be did not keep money, but tbat bis wife kept bis money. Defendant was at Bridgers’ bouse tbe day before tbe homicide was committed and asked Mary Bridgers when her husband was going to town and when be would come back. She told him her husband would go the next morning and return about sunset. Hé then asked where her husband was at tbat time and she replied: “Yonder be comes with bis gun on bis shoulder. He has been bunting.” Defendant was then standing in tbe yard, and as Bridgers approached him be left hurriedly without speaking to Bridgers, though be was in speaking distance. Early Friday morning tbe defendant was seen going in tbe direction of tbe Bridgers bouse. He did not arrive at tbe Massey home where be worked until 9 or 10 o’clock in tbe forenoon and remained there only until noon, when be left and went in tbe direction of tbe Bridgers place. At one o’clock be was seen at tbe latter place standing at tbe corner of tbe bouse. About sunset of tbe same day be was seen coming out of the woods or old field between tbe Brid-gers bouse and the public road. He was running at tbe time and bis behavior was unusual. Crossing tbe road, be ■“squatted down” behind a holly bush as if trying to conceal himself. One of tbe witnesses who saw him spoke to him and asked him what he was doing there and be made no reply. *690The witness remarked to bis son wbo was in tbe buggy with him: “That negro has done something mean; he is scared to death; it may be one of the negroes who broke out of jail.” His son replied: “No, it is Will Adams.” They left him tkel’e, and he was next seen at his own house about one o’clock in the night, when the officer went to arrest him. His conduct at that time was peculiar. He refused to answer when he was called, and, when the officer attempted to arrest him, he resisted and struck at the officer with a stick and threatened to kill him. He did not submit until the officer threatened to shoot him with his gun. The officer examined his clothing and found that his trousers and shoes and socks were wet. Tracks were found by the holly bush and from the holly bush along a hedge row and thence on to the creek, and tracks were also found at the creek, indicating that some one had ford.ed it at the place where it was crossed, and from the creek to the defendant’s house, tracks corresponding with those already mentioned wfere found at Bridgers’ house and from the house to the place where Mary Bridgers’ body was found, about one hundred yards away, and from that place back to the house. Tracks .were also found from the holly bush to a path at a point about 100 yards from the body. There was much evidence tending to show that all of these were tracks of the defendant. Robert Bridgers left his house early Eriday morning for Raleigh, and returned at sunset the same day. As he approached the house, he called his wife but received no answer. He then went to the house and found two of his children badly wounded- and in a dying condition. He rode rapidly on his mule to the house of a neighbor and the two returned to Bridgers’ house. Bridgers examined his bureau and found' that his money, $6.00 in all, had been taken. He went to the back door of the house and, seeing tracks, he followed them to the place, about 100 yards from the house in the cotton patch, where he found his wife’s dead body. Her head *691bad been crushed, and the coroner, who is a physician, testified that it was done with a blunt instrument like the eye of an ase, and there was evidence tending to show that blood was found on the axe at the woodpile, a few steps from the house. There were two tracks from Bridgers’ house to the place where the body was found; one the track of a man, and the other the track of a woman, and the tracks of a man returning to the house. The tracks from the house to the place where the body was found indicated by their appearance that the man and the woman were running when they were made. The defendant was searched by the officer who árrested him and two half-dollar pieces and four coppers were found in his pockefs. One of the silver coins was a very bright piece and apparently had never been used; the other was older and darker. They were identified by Brid-gers as two of the pieces taken from his bureau drawer. The defendant’s statement, when asked by the examining magistrate as to his whereabouts on Friday, was contradicted by witnesses acquainted with the facts.

The defendant objected to all evidence relating to the finding of the children by Bridgers in his house when he returned from Ealeigh and to their condition, as not being pertinent to the issue, and, upon its being admitted, he excepted. The defendant asked that the following instructions be given to the jury:

1. "When circumstantial evidence is relied upon to convict, it must be clear, convincing and conclusive in its connection and combination, and must exclude all ratonal doubt as to the defendant’s guilt. And, therefore, if the evidence as to _ the footprints in this case is not clear, satisfactory, convincing and conclusive to the minds of the jury, in other words, if such evidence does not point with moral certainty to the guilt of the defendant and to that of no other person, then the jury should acquit the defendant, unless the whole evidence in the case, after leaving out of consideration *692the evidence bearing upon the footprints, is sufficient to satisfy fully the minds of the jury as to the guilt of the defendant.

2. It is essential that the correspondence between the tracks and the feet or shoes of the defendant, to have a decisive bearing, should be proved by actual comparison as by bringing the two into juxtaposition and placing the shoe into the impression, or by actual measurement of the two and a comparison of the measurements.

3. The footprints are insufficient to establish guilt if they are not distinguished from ordinary footprints by any peculiar marks, and the correspondence between them and the tracks of the defendant is merely in superficial shape, outline and dimensions.

4. If the State has satisfied the jury from the evidence beyond a reasonable doubt that Mary Bridgers was killed, and also from the evidence of footprints that the defendant, Will Adams, was in such a situation as made it possible for him to have committed the act, then it is incumbent on the State to show, if possible, that Will Adams had a motive for so doing, for where the State relies on circumstantial evidence to convict, the motive becomes not only material, but controlling, and in such cases the facts from which it may be inferred must be proved. It cannot be imagined any more than any other circumstance in the case, and the burden is on the State to show to the jury beyond a reasonable doubt that the defendant had a motive for the commission of the act.

5. The court instructs the jury that the proof of the facts from which motive is to be inferred must be clear, satisfactory, convincing and conclusive, and exclude any other reasonable hypothesis than that of the defendant’s guilt. And further, that such facts must be proved to have been known to the defendant at the time of the homicide. Therefore, since the State relies upon robbery as the motive in this case, *693tbe court instructs you that tbe burden is on tbe State to satisfy tbe minds of tbe jury beyond a reasonable doubt not only that Robert Bridgers, the husband of the deceased, bad money in tbe bouse in which be lived, but that tbe defendant killed Mary Bridgers in furtherance of an attempt to take such money.”

Tbe court refused to give these instructions and tbe defendant excepted. Tbe court gave other special instructions asked by tbe defendant and charged tbe jury generally in regard to the facts and tbe law. There was no exception to tbe general charge. There was a verdict of guilty of murder in tbe first degree. Judgment was pronounced thereon and tbe prisoner excepted and appealed.

Robert D. Gilmer, Attorney-General, for tbe State.

W. B. Snow and B. M. Shafer for tbe prisoner.

Walker, J.,

after stating the facts: The defendant objected to the testimony of Robert Bridgers as to the condition of bis children when be found them on bis return to bis home, upon the ground that it was not pertinent to the issue, and bis. counsel argued before us that if it was pertinent for any purpose it should have been restricted by the court in its charge to that purpose. There was no error committed in regard to this testimony. True it is that evidence as to one offense is not admissible against a defendant to prove that be is also guilty of another and distinct crime, the two having no relation to or connection with each other. But there are well defined exceptions to this rule. Proof of another offense is competent to show identity, intent or scienter, and for other purposes. In State v. Murphy, 84 N. C., 744, the court held that “it is important not to confound the principles upon which the two classes of cases rest. On the one band it is admissible to produce evidence of a distinct crime to prove scienter, or to make out res gestae or to ex*694hibit a chain of circumstantial evidence of guilt in respect to the act charged,” and on the other the evidence should be limited to these exceptions and should be excluded when it does not legitimately fall within their scope. Wharton Cr. Law (7 ed.), sec. 650 and 631. And so in State v. Thompson, 97 N. C., 498, this court discussing an objection similar to the one now made, said: “The circumstances strongly pointed to a single agency, and with the ownership of the rope, with which the kindling materials were bound, to the defendant as the guilty author of both of the firings. The facts proved are parts of one continuing transaction, and are but the development of the conduct of the person by whom the successive acts were done,” citing Wharton Cr. Law, sec. 649. While the last case cited is closely analagous to this one, the case of State v. Mace, 118 N. C., 1244, is perhaps more like it. There, the defendant was indicted for murder and this court held it competent to show an assault upon a witness, it being connected with the offense charged and material evidence upon several grounds as tending to show, among other things, that the act was done to prevent a discovery of the defendant’s crime, so that he could escax^e its probable consequences, and also to show that the homicide he was charged to have committed was wilful, intended and not merely accidental, deliberate and premeditated. “Crimes,” says Underhill, “leading up to or connected with the homicide, so -that they form parts of one transaction, may be proved as parts of the res gestae to illustrate the conduct and disposition of the accused about the time of the homicide.” Underhill Crim. Ev., sec. 321. He then says in the same section: “It may be shown that in the same affray or immediately before or after, the accused killed or attempted to kill another person than the one for whose homicide he is on trial,” if the homicides are connected with each other and were committed at or about the same time and place. State v. Graham, 121 N. C., 623; State v. Jeffries, 117 N. C., 727. We think the condition *695of the children was an essential part of the transaction and an important link in the chain of circumstances tending to prove the guilt of the defendant. As His Honor said below, this cannot be separated from the other facts, and we say the story of this horrible tragedy cannot be told without it. There is no error in the ruling of the court and this exception is not sustained. The case of People v. Molineux, 168 N. Y., 264, is not in point. There, the homicides, if there were two committed, were separated by long intervals of time, occurred in widely separated places and were induced manifestly by different motives, and they were not in any way connected with each other, so far as appeared. The other cases cited by the defendant’s counsel are equally inapplicable. They come within the rule and not within the exception.

Nor did the court err in refusing to give the first prayer for instruction. There is no particular formula by which the court must charge the jury upon the intensity of proof. “No set of words is required by the law in regard to the force of circumstantial evidence. All that the law requires .is, that the jury shall be clearly instructed, that unless after due consideration of all the evidence they are 'fully satisfied’ or 'entirely convinced’ or 'satisfied beyond a reasonable doubt’ of the guilt of the defendant, it is their duty to acquit, and every attempt on the part of the courts to lay' down a 'formula’ for the instruction of the jury, by which to 'guage’ the degrees of conviction, has resulted in no good.” We reproduce these words from the opinion delivered by Pearson, C. J., in State v. Parker, 61 N. C., 473, as they present in a clear and forcible manner the true principle of law upon the subject. The expressions we sometimes find in the books as to the degree of proof required for a conviction are not formulas prescribed by the law, but mere illustrations. State v. Sears, 61 N. C., 146; State v. Knox, Ibid., 312; State v. Norwood, 74 N. C., 247. The law requires only that the jury *696shall be fully satisfied of the truth of the charge, due regard being had to the presumption of innocence and to the consequent rule as to the burden of proof. State v. Knox, supra. The presiding judge may select, from the various phrases which have been used, any one that he may think will correctly inform the jury of the doctrine of reasonable doubt, or he may use his own form of expression for that purpose, provided always, the jury are made to understand that they must be fully satisfied of the guilt of the defendant before they can convict him. In State v. Gee, 92 N. C., 161, where the court below had refused to charge according to one of these supposed formulas, and told the jury that it was not a rule of law but only an illustration and intended to impress upon the jury the idea that they should be convinced beyond a reasonable doubt of the defendant’s guilt, the court, by Smith, C. J., said: “We do not see in the charge, or in the manner of submitting the case to the jury, any error of which the defendant has a right to complain.” If the judge charges the jury in substance that the law presumes the defendant to be innocent and the burden is upon the state to show his guilt and that upon all of the testimony they must be fully satisfied of his guilt, he has done all that the law requires of him, the manner in which it shall be done being left to his sound discretion to be exercised in view of the facts and circumstances of the particular case.

The second and third prayers were properly refused. We are not aware of any principle of law which requires that footprints should be identified in the manner described. Expressions of the kind used in the prayers may' perhaps be found in the books and, if so, they were intended merely as illustrations to make the law clearer to the jury in some peculiar state of the. facts, and not as containing in themselves any fixed phrase of the law applicable alike to all cases. Besides, in this case it appears that the defendant made tracks at the holly bush and along the hedge row where he was seen *697in the afternoon of the day on which the homicide was committed; that those tracks extended to the creek where be forded it and from'the creek to the house where be lived, and that they corresponded in appearance with the tracks at and near the Bridgers house. There was other strong and convincing proof of the identity of the tracks at the place of the homicide with those of the defendant.

The fourth prayer does not embody a correct principle of law and should not have been given. It is not required that a motive should be shown under the circumstances recited in the prayer. When the evidence is circumstantial, the proof of a motive for committing the crime is relevant and sometimes is important and very potential, as it may carry conviction to the minds of the jurors, when otherwise they would not be convinced. This is all that is meant by the court in the cases cited by counsel. State v. Green, 92 N. C., 779. Murder may be committed without any motive. It is the intention deliberately formed after premeditation, so that it becomes a definite purpose, to kill, and a consequent killing without legal provocation or excuse that constitutes murder in the first degree. The existence of a motive may be evidence to show the degree of the offense, or to establish the identity of the defendant as the slayer, but motive is not an essential element of the crime, nor is it indispensable to a conviction of the person charged with its commission. State v. Wilcox, 132 N. C., 1143; State v. Adams, 136 N. C., 620. There was no error in refusing to give the instruction contained in the fifth and last prayer. If the instruction thus asked to be given to the jury was proper in form and correct in all its parts, we yet do not think it is necessary where the State relies upon a motive, such as robbery, that it should be required to prove that the defendant at the time of the killing knew the fact from which the alleged motive may be inferred, that is, as in this case, that there was money in Bridgers’ house. There is evidence in this record that he had *698knowledge of that fact, though there was no such evidence at the first trial. Bridgers told the defendant that he had money and that his wife kept it for him. It was said in the former opinion that knowledge by the defendant of the fact must be shown in order to prove a motive, when it consists in robbery, but that language was used in reference to .the charge of the court, then being discussed, that the taking of the money from the house was one of the facts which tended to establish the defendant’s guilt, the court holding that this could not be so unless it had been shown either that the 'defendant knew that the money was in the house or that some of the stolen money was found on his person or in his possession, and there was no proof of either of those facts. That money was stolen must be some evidence that the motive was robbery, even though the defendant did not know there was money in the house and even though none of the money was found in his possession. It was not sufficient by itself to show that the defendant was the thief. It may be further said of this prayer that the court is not required to select a single fact from the mass of the testimony and charge the jury that the proof as to that must exclude every reasonable hypothesis except the defendant’s guilt. Such a charge would necessarily mislead the jury by directing their attention to that fact as the pivotal one of the case, and to convincing proof of its existence as the crucial test of his guilt. It is sufficient, in order to preserve and safeguard all the rights of the defendant, to charge the jury as His Honor did, and, as we ■have already shown, is quite in accordance with settled principles of the criminal law, that the jury should weigh all the facts and circumstances which they find to be established by the testimony, giving the defendant the benefit of any reasonable doubt, and unless they are fully satisfied, upon a consideration of all the evidence and under the instructions of the court as to the law, that the defendant is guilty, they should acquit. The court fully explained to the *699jury the difference between the degrees of murder, and in all respects the charge was clear and comprehensive and presented the case to the jury in every conceivable phase. It was substantially responsive to all of the defendant’s prayers for instruction, so far as they are warranted by the facts and the law.

It is proper to refer to the rare skill and ability with which the defense in this case has been conducted by -the learned counsel assigned by the court. The record shows an unusually strong presentation of the defendant’s case in the court below by bis counsel, who have served him with untiring zeal and singular devotion throughout the case, and without any reward for their services, except that which will come to them from the consciousness of duty well performed. In this court, at both bearings, we have bad the benefit of able and exhaustive arguments in the defendant’s behalf. We are constrained, though, after a most attentive consideration of the record, the arguments and the briefs of counsel, to declare that no error was committed by the court at the last trial.

No Error.