#### STATE v. CHARLES B. PLYLER.

(Filed 17 November, 1910.)

1. Removal of Causes — Local Prejudice — Discretionary Powers — Appeal and Error.

Generally a motion to remove a cause to another county for local prejudice is a matter within the sound discretion of the trial judge, and not reviewable on appeal, and nothing appears of record to mate this case an exception.

2. Murder — Evidence, Circumstantial — Link In Chain — Sufficiency.

Upon a trial for murder many independent facts are permitted to be proven against the prisoner, which taken collectively, point to the conclusion of guilt; and when there is evidence tending to prove the prisoner’s guilt by waylaying and shooting the deceased, or that he was present in person aiding or abetting it, it is competent to show that some days before the homicide the prisoner called the deceased out on his piazza at night and shot and wounded him. This, with other evidence of the prisoner’s declarations, is competent as tending to show the animus of the prisoner toward deceased.

*6313. Same.

As one of the links in the chain of circumstantial evidence tending to prove the prisoner’s guilt upon his trial for murder, it is competent to show that he went to the house of the witness after the homicide, about one o’clock a. m. of the same night, before he gave himself up, saying he wanted to talk about the ease, and told the witness he had not done the shooting, but knew who did, and would not tell for fear of him, a dangerous character, etc., as such conduct on the prisoner’s part was proper evidence for the jury to consider with other evidence tending to fix him with guilty knowledge of the crime.

4. Murder — Opinion Evidence — Ordinary Inferences — Incompetency.

An element of defense in a trial for murder being that the prisoner could not have gone from his house, where his evidence tended to show he was at a certain time, to the place of the homicide, which soon after occurred, in time to have committed the crime, it was incompetent for him to ask a lay witness as to how long, in his opinion, it would take to go the distance, for the testimony called for was such as the jurors themselves could form an opinion of under the evidence which was introduced or capable of being introduced. But it is competent for the witness to testify, under defendant’s objection, that he had gone from the one place to the other in a certain length of time as a matter of fact; and in this manner the prisoner got the advantage of the excluded question.

5. Murder — Circumstantial Evidence — Sufficiency.

The circumstantial evidence in this case as to the prisoner’s guilt was examined and held to be sufficient to be submitted to the jury.

Appeal from William R. Allen, J., at the August Term, 1910, of UNION.

Indictment charging Charles B. Plyler, George Mayhew and John McManus with the murder of Carter Parks.

The defendant McManus was acquitted. The court below has now under advisement a motion to set aside the verdict as to defendant Mayhew as being against the weight of the evidence.

The defendant Plyler was convicted and sentenced to death. From the judgment of the court he appeals.

The facts are fully stated in the opinion of Justice Brown.

Attorney-General and George L. Jones for State.

Adams & Armfield, J. J. Parker, Williams, Lemmond & Love for prisoner.

*632Brown, J.

1. Tbe prisoner excejhed to tbe refusal of tbe court below to remove tbe cause for trial to some adjoining county.

As admitted in tbe brief of tbe learned counsel for tbe prisoner it bas been repeatedly decided by this Court that a motion to remove is almost always a matter witbin tbe sound discretion of tbe nisi prius judge and not reviewable bere. Pell’s Revisal, sec. 426, and cases cited.

We find nothing in tbe record which takes this case out; of tbe general rule.

2. Tbe prisoner excepts to tbe ruling of tbe court permitting tbe introduction of evidence by tbe State tending to prove that not long before tbe homicide tbe deceased bad been called out on tbe piazza of bis residence at night, shot at and wounded, as contended by prisoner, by an unknown person. Tbe prisoner’s contention is evidently based upon tbe theory that there is no evidence connecting tbe prisoner with this particular affair. Upon that theory tbe authorities cited by tbe learned counsel support tbe objection to tbe evidence.

In this case, however, there is abundant evidence, which, if believed, tends to prove not only that tbe deceased was shot on tbe occasion in question, but that tbe prisoner either did tbe shooting himself or was present in person aiding and abetting it.

Tbe witness Bichardson testified that tbe prisoner, just before tbe shooting occurred, said to witness, “You go back over there to Carter’s bouse and get him on tbe porch and get him drunk; I am going to get him.” Tbe same witness said be was at deceased’s bouse tbe night when tbe shooting occurred, and that be recognized defendant outside by bis voice. Again, be testified that on another occasion, while defendant was talking to him about Carter, be (defendant) said: “Pace, I ain’t afraid of nobody. I shot one man, and I am tbe very damned frog that muddied the pond.”

In addition to this, tbe record shows other matters tending to connect tbe defendant with tbe first shooting, amply sufficient to convict him of tbe crime if be bad been indicted for it.

It early became necessary for tbe protection of society that courts should permit tbe evidence of circumstances to establish *633tbe guilt of persons accused of crime. For this purpose many independent facts are permitted to be proven, which taken collectively point to a certain conclusion. It has been well said: “Where the particular fact offered to be proved is equally consistent with the existence or non-existence of the fact sought to be inferred from it, then the evidence can raise no presumption either way and should be excluded.” Rodman, J. S. v. Vinson, 63 N. C., 335; S. v. Brantley, 84 N. C., 769.

If there was nothing to connect the prisoner with this particular shooting testified to by Eichardson, it would be a collateral fact from which no inference could reasonably be drawn injurious to the prisoner and would therefore be incompetent. But when his extraneous crime has been brought home to the prisoner, then the fact becomes competent, because it is much more consistent with his guilt than it is with his innocence, of the crime of shooting the same person a short while after. S. v. Alston, 94 N. C., 932; 1 Wharton Crim. Law, secs. 631-670. A previous attempt by the prisoner to assassinate his victim is very potent evidence of the quo animo, the motive, and of a fixed purpose to take the life of the deceased.

There are a number of illustrative cases cited in Lawson on Presumptive Ev., p. 589, directly in point, some of which we cite: V is indicted for shooting at P with intent to kill. Proof that V at a previous time had shot at P is relevant. S. v. Voke, R. & R., 531.

A was indicted for poisoning his wife by giving her laudanum. The fact that A had on a former occasion given her laudanum, which made her sick, is relevant. Johnson v. State, 17 Ala., 622.

In the case of Rex v. Dorset, 2 C. & K., 306, defendant was charged with having wilfully set fire to a haystack. The fact that, on a previous day, the risk was seen to be on fire and the defendant to be near it, was held relevant. While the cases cited by counsel for prisoner recognize the general rule that evidence of a distinct substantive offense cannot be admitted in support of another offense, they also recognize the exceptions, within which the fact sought to be proved in this case clearly falls.

3. Prisoner excepted to evidence of a declaration made to P. *634P. W. Plyler, wlio testified tbat prisoner came to bis bouse about 1 o’clock on the nigbt tbat be gave himself up to the officers and said be wanted to talk some about the case. He said “be did not do the shooting, but be knew wbo did it, and did not want to tell it for fear of wbat the man would do to bim if they did not put bim where be could not get to bim; tbat be said be would Mil bim if be told, and be was a dangerous man.”

This was both relevant and competent. Tbe fact tbat tbe defendant went at 1 o’clock and waked witness and wanted to talk about tbe shooting, was conduct on tbe part of tbe defendant which tbe jury was entitled to consider along with tbe other evidence.

“Everything calculated to elucidate tbe transaction is admissible, since tbe conclusion depends upon tbe number of links, which alone are weak, but taken together are strong and able to conclude.” S. v. Bradham, 108 N. C., 794.

Other declarations of tbe prisoner were introduced, over Ms objection, which we think were clearly competent, but it is unnecessary to notice them more particularly.

4. Tbe prisoner introduced a witness, Starnes, and asked bim this question: “State whether or not, in your opinion, Charlie Plyler could have walked from tbe barn tbe straigbtest line to the scene of the killing while you were going tbe distance to where you beard tbe gun fire.” This was excluded by tbe court. He was then asked if it were possible for any man to have done it. This was also excluded.

One of tbe points made by prisoner in bis defense is tbat be could not have walked from bis premises where be was seen at a certain hour to tbe scene of tbe homicide in time to have fired tbe gun tbat is supposed to have killed deceased.

Evidence of tbe distance, character of tbe earth’s surface, thickness of tbe woods, etc., was offered and received to establish prisoner’s contention.

It was not proper, therefore, for tbe witness to pass on that contention. Tbe rule in opinion evidence is tbat if all tbe facts are before tbe jury or can be placed there, then it is not competent for tbe witness to express bis opinion upon such facts, as tbe jury can equally well draw tbe inference for themselves.

*635“If the jury can judge for themselves on this matter equally as well as the lay witness, it is obvious that it would be a waste of time to ask for any testimony from him or from a dozen or a hundred other persons no more capable than he of adding to the jury’s own information.” Greenleaf on Evidence, vol. 1, p. 526.

The prisoner, however, got the full benefit of Starnes’ knowledge because on cross-examination by the State he testified, against prisoner’s objection, that he traversed the space between the barn and the scene of the homicide in three minutes. This evidence was not only competent, but was positive testimony to a material fact and was well calculated to assist the jury in determining whether or not it was possible for the prisoner to get to the scene of the homicide before the report of the gun was heard by a witness who had passed Plyler’s place and seen him, and then gone some distance up the road. This witness had testified that it took him ten or fifteen minutes to go from the house to the place where he was when he heard the report of the gun.

5. We come now to the most important exception and one which impresses us with.a deep sense of responsibility in a case of this gravity. The prisoner contends that, taking all the evidence to be true, it is not sufficient in probative force to warrant a conviction, and that the court erred in not directing a verdict of not guilty.

We have scrutinized the evidence with that care which the importance of the case demands, and have no hesitation in concluding that his Honor was fully justified upon the evidence in denying the prisoner’s prayer. It is not necessary to go into the evidence in detail, but we will briefly refer to its salient features.

The deceased was a brother-in-law of prisoner and a near neighbor. He left his home Wednesday about six P. M. and was last seen going towards a spring in the woods near which his dead body was found on Friday following. That he was foully murdered by some one, who shot him in the back of the head from behind a tree, is manifest.

About the same time the deceased was seen going towards the spring, the prisoner, with two others, was seen to start from prisoner’s premises in same direction, the prisoner saying, “Let’s go *636and do wbat we said we were going to do.” Tbe woods extended from tbe place of tbe homicide up to prisoner’s smoke-house, where be was seen by one witness ten or fifteen minutes before tbe gun fired which was supposed to have billed tbe deceased.

There is abundant evidence of ill will, bad blood motive, and especially an attempt by prisoner to assassinate deceased at night by shooting him on his piazza from ambush a short while before the homicide. There is evidence of threats to kill made not long before the homicide. After the discovery of the body there is evidence that prisoner attempted to induce certain persons to “keep their mouths shut.” Declarations of the prisoner, as well as his acts, tend to prove that he knew who killed Parks and all about- the homicide, but refused to say who it was that committed the murder. There was further evidence that Plyler had a talk with a witness in a restaurant on the day the body was found, in which he said it did not make much difference about Parks being killed; he was a sorry man anyway.

There was also evidence that after the body was found and the investigation began, the defendant tried to escape.

6. Several exceptions are taken to the charge of the court upon the quality of circumstantial evidence and when it is proper to convict or acquit.

This matter has been discussed so much by the courts that we will not “thresh over old straw.” We copy that portion of his Honor’s charge and give it our full approval as a lucid statement of the law, at which the prisoner has certainly no reason to complain.

“The law says that circumstantial evidence is a recognized and accepted instrumentality in the ascertainment of truth; and it is essential and when properly understood and applied is highly satisfactory in matters of the gravest moment. The facts, relations, connections and combinations between the circumstances should be natural, clear, reasonable and satisfactory. When such evidence is relied upon to convict, it should be clear, convincing and conclusive in all its combinations and should exclude all reasonable doubt as to guilt. In passing upon such evidence, it is the duty of the jury to consider all circumstances relied upon to convict and to determine whether they have been *637established beyond a reasonable doubt. If not so established, the circumstance should be excluded from further consideration and have no weight in reaching a verdict. The State puts up a witness here and undertakes to prove a circumstance; you will first determine in your mind, is this circumstance established beyond a reasonable doubt? If you say that circumstance has been established beyond a reasonable doubt, you take that into consideration in determining what verdict you will find.

“After considering the evidence in this way, and determining the circumstances which are established beyond a reasonable doubt, the next thing for the jury to determine is, do these circumstances exclude every other reasonable conclusion except that of guilt? If so the evidence is sufficient to convict; otherwise, not.”

The last objection which the defendant raises is to the fact the. jury were told, during their deliberations, of another murder in the same section of the county, which was committed during the trial of this case. The judge presiding took every precaution that he could in the matter. He sent word at once to the officer who had the jury in charge not to let the matter be disclosed to them. This was too late, though, for they had already been apprised of it. We do not think there is anything in this, nothing else appearing, which should entitle the defendant to a new trial. Nothing in the record shows, so far as the record discloses, that the jury took this matter into consideration one way or another.

Upon a review of the entire record, having considered every assignment of error, we are of opinion that they are without merit and that there is

No error.