#### STATE v. ROBERT McDOWELL.

(Filed 11 December, 1907).

1. Murder — Evidence—Premeditation—Question for Jury.

Tbe deceased, while on tbe train with L., had a difficulty with him and struck him. L. continued to curse the deceased, and the prisoner appeared to be intimately associated with L., to sympathize with him, and had evidently prepared to take his part,' having pulled out his pistol, shifted it from one pocket to another to have it “more handy,” and gone out on a platform to a station where the train stopped, looked at the ears and brandished his pistol. Thereafter, when he fired the fatal shot, he reached his arm over the shoulder of another person and snapped his pistol several times before it fired: Held, there was sufficient evidence of premeditation and deliberation to sustain a verdict of guilty of murder in the first degree.

2. Same — Instructions—Evidence—Revenge.

A prayer for special instructions embodying in part a correct proposition as to the findings of the jury on the question of murder, but also susceptible to the construction that, if the prisoner fired the fatal shot for revenge for the treatment his companion had received, it would only be murder in the second degree, is erroneous.

INDICTMENT for murder, tried before Webb, Jand a jury, at Special Term, July, 1907, McDowell Superior Court.

Tbe prisoner, Bob McDowell, was indicted for tbe murder, of J. L. Milieu and convicted of murder in tbe first degree. From tbe judgment and sentence of the Court tbe prisoner appealed.

Assistant Attorney-General Glement for tbe State.

Pless & Winborne for defendant.

Beown, J.

Tbe prisoner introduced no testimony, and that admitted in behalf of tbe State tends to prove tbe following facts: Tbe prisoner, with one Long and some others, were on tbe train, going via Vein Mountain to Marion. A difficulty occurred on the train between a party of negroes in tbe *564second-class coach. Millen, the flagman, went in and tried to quiet them. Long came up to Millen and asked what authority he had to interfere with the fight. Millen replied that it was none of Long’s business, and that it was his business to quell disturbances. Long thereupon cursed Millen, and Millen hit Long with his fist. Millen made Long sit down and be quiet. Millen then went back in the smoker, and the prisoner got up, walked up the aisle to the baggage car and changed his pistol from one pocket to another, came back and said he did not allow any ■— --- to run over him, and sat down in the seat with Long. Long all this time was cursing Millen and saying that he wasn’t going to be run over and wasn’t going to take that of anybody. When the train stopped at Vein Mountain the prisoner got out and walked up and down the track, looking back at the train, with his pistol in his hand. Millen' was not outside at that time, but in the smoker. When the train left Vein Mountain some one told the conductor that there was disorderly conduct in the second-class car; he walked up through the second-class car to where the prisoner and Long were sitting. The conductor testified that the prisoner was sitting in the seat in front of Long, but the other evidence seems to contradict this, and it seems that the prisoner was sitting in the same seat with Long, the prisoner being nearest the aisle. Long was still cursing Millen, when the conductor came up and said: “You be quiet, or I will have to put you off.” Long replied: “I don’t allow any man to curse me like he did,” and said he was not going to “take i‘t.” Millen came in and heard the remarks of Long, and walked up to about two seats behind Long and the prisoner, and asked Long if that was Long cursing him. Long said “Yes,” and Millen hit Long with his fists. Long jumped up and opened a knife, and Millen hit Long and knocked him down. Millen then stepped back about four steps from where .they were sitting, making him about four seats away, and stood there, looking at the conductor attempt*565ing to bold. Long in bis seat. While Long was struggling with the conductor the prisoner jumped up and, turning around, faced the conductor, jerked his pistol out, threw his arm so his pistol extended over the conductor’s right shoulder, snapped it once or twice, then fired it twice, hitting Millen in the left temple, killing him instantly. The conductor and one of the witnesses threw the prisoner down and tied him. When the prisoner shot deceased,- the deceased was standing with his head turned to the right, looking at the conductor and Long, and was shot in the left temple.

The few exceptions to testimony appearing in the record, we find, upon examination, to be without merit and not of sufficient novelty or importance to warrant discussion.

The prisoner excepts to the refusal of the Court to instruct that there is no evidence of premeditation and deliberation, .and, therefore, the jury could not convict of murder in the first degree. We think the jury were warranted in finding, from all the circumstances surrounding the homicide, that it was the result of preparation and premeditation upon the part of the prisoner. líe and Long appeared to be intimately associated. When Long provoked the difficulty with the deceased, the prisoner evidently sympathized with his companion and prepared to take his part. He pulled out his pistol, shifted it from one pocket to another so as to have it “more handy”; went out on the platform at the station when the train stopped, looking at the cars and brandishing his pistol. When he fired the fatal shot, the prisoner reached his arm over the conductor’s shoulder, or around his neck, and snapped his pistol several times before it would fire. There is no pretense of self-defense and nothing in the evidence tending to prove any personal injury to the prisoner sufficient to arouse such violent passion. From these circumstances the jury might well conclude that the prisoner slew the deceased on 'a principle of revenge for the fancied wrong to himself or his companion, which was trivial in its nature, *566so far as the prisoner was concerned, and that lie had determined to slay the deceased before he fired the fatal shot. State v. Johnson, 47 N. C., 247; State v. McCormac, 116 N. C., 1034; State v. Lipscomb, 134 N. C., 694. The evidence of preparation, deliberation and premeditation submitted to the jury in this case appears to be equally as strong, if not stronger, than that held to be sufficient in State v. Daniel, 139 N. C., 549; State v. Hunt, 134 N. C., 684; State v. Teachey, 138 N. C., 587.

The conduct of the prisoner throughout indicates thought, contrivance and design in the manner of securing and handling his pistol prior to firing the fatal shot, and to such a degree as manifests an exercise of judgment and deliberation rather than unpremeditated and ungovernable passion. State v. Daniel, supra. It is not necessary to conviction that the State should prove express malice or motive. The malice is implied from the manner of the slaying, and the motive, although unnecessary to be proven, is perfectly apparent from all the evidence. State v. Adams, 136 N. C., 617; State v. Wilcox, 132 N. C., 1143; State v. Turner, 143 N. C., 642.

The prisoner excepts because the Court refused to give the following instruction: “If defendant, upon the impulse of the moment, or without having fully determined so to do before, suddenly began shooting, or shot at the flagman because of the treatment which his companion was receiving, or about to receive, it would be murder in the second degree.” The first score of words embodies a correct proposition of law. The remaining part of the instruction is susceptible to the construction that, if the prisoner fired the fatal shot in revenge for the treatment his companion had received, or was receiving, it would be only murder in the second degree. This is erroneous. Revenge implies malignity, retaliation, not impulsive passion.

“May my hands

Never brandish more revengeful steel.”

*567It indicates a deliberate and premeditated purpose. State v. Daniel, supra. A portion of the prayer being erroneous, the Court did not err in rejecting the whole.

AVe have examined the record with that careful scrutiny which cases of this gravity demand, and we find

No Error.