#### STATE v. L. M. SANDLIN.

(Filed 4 October, 1911.)

1. Murder — Special Venire — Regular Jurors — Interpretation of Statutes.

Chapter 343, Laws 3909, providing a term of court for New Hanover County, provides that jurors drawn for tbe term “shall be regular jurors and subject only to the challenges now allowed by law to regular jurors.” Hence, when the regular panel for the first week had been exhausted and a case for a capital felony was reached on Saturday and continued to Monday of the following week, it was not required that a special venire should have been drawn under Revisal, secs. 1973, 3974, and objections to the regular panel is without merit.

2. Murder — Defenses—Insanity—“Not Guilty” — Double Issues— Waiver — Inherent Prejudice.

The prisoner was permitted to amend his plea upon trial for murder and set up insanity as a defense, and without objection a double issue as to defendant’s insanity and guilt were submitted to the jury: Held, (1) the prisoner waived his right by not excepting at the time; (2) the submission of the double issue was not inherently prejudicial, and did not constitute reversible error.

*6253. Appeal and Error — Error in Transcript — Certiorari—Ex Mero Motu — Correction,

Id this appeal by the prisoner from verdict and judgment of murder in the first degree, his counsel objected to the judgment, as the record sent up disclosed a verdict of “guilty of the felony and murder in manner and form as charged in the bill of indictment.” Bco mero motu the Supreme Court sent down an instanter certiorari, to which the clerk returned that the entry on the docket showed that the jury returned their verdict in writing as follows: “2. Is the defendant guilty of the felony and murder of which he stands charged? Answer: Guilty of murder in the first degree.” The clerks of the Superior Courts are cautioned that they send up transcripts that are “true, full, and perfect,” and Held, no error in the judgment rendered below in this case.

Appeal from Oline, J., at July Term, 1911, of New HaN-0VER.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.

Attorney-rGeneral T. W. Biekett and Assistant Attorney - General G. L. Jones for the State.

L. Clayton Grant for defendant.

Clark, 0. J.

Tbe prisoner was convicted of murder in tbe first degree in killing bis wife. Tbe evidence is that tbe wife bad left ber busband after a quarrel and moved to another bouse, where sbe kept boarders. On tbe day of tbe homicide tbe prisoner went to bis wife’s bouse. After some conversation, be commenced beating bis wife. Sbe screamed and ran from the dining-room into tbe parlor. Tbe defendant followed, beating ber. Sbe ran from the parlor into tbe ball, and tbe prisoner still followed ber. When sbe got into tbe ball tbe prisoner pulled out his pistol and shot ber three times, twice in tbe back and once in tbe neck. The doctor testified that either shot would have killed ber. Sbe fell, and tbe prisoner stepped over tbe body and out onto tbe porch and shot himself in the bead, but not seriously. One Moss, who occupied an adjoining room, said to him: “Throw that pistol down.” He threw it down on tbe porch and Moss picked it up. The prisoner then said: “I killed ber, and I intended to kill ber.”

*626The coroner, who was also a physician, testified as to the pistol shots, and on cross-examination testified that-he did not consider the prisoner at all insane. The prisoner offered no testimony, asked for no special instructions, and took no exceptions to the charge.

The prisoner in his brief relies upon the second assignment of error. The trial began on Saturday of the first week of the term. The regular panel of that week was exhausted. When the court met again on Monday, the regular jurors who had been drawn for service during the second week, by virtue of a special act for New Hanover, chapter 342, Laws 1909, were called. The first juror who was tendered was challenged on the ground that this act did not apply to capital cases, hut that a special venire should have been drawn under Revisal, 1973, 1974. The act in question provides that jurors so drawn “shall be regular jurors and subject only to the challenges now allowed by law to regular jurors.” This also disposes of the assignments of error 3, 4, 6, and 7, which were because the judge held that such jurors were regular jurors and not subject to challenge as talesmen.

The other assignments of error which were not abandoned need not be mentioned, except the 15th, which was because insanity at the trial being insisted on, the judge at the instance of the prisoner allowed his plea to be amended to allege it, and thereupon submitted to the jury the double issue as to the prisoner’s insanity at the trial and as to his guilt. The double issue was submitted without exception at the time, and was therefore waived unless it was inherently prejudicial. In S. v. Haywood, 94 N. C., 847, the Court, while not approving such practice, held that it was not error in law, stating that this practice had been pursued in other trials, citing Rex v. Little, Russ and R., 430; Regina v. Southey, 4 Foster and Fin., 864; Buswell on Insanity, sec. 461.

We do not see how any prejudice could have arisen to the prisoner on this occasion. Insanity at the time of the homicide could of course be set up as a defense on the other issue as to the prisoner’s guilt.

*627Tbe record as sent up recited that tbe jury returned a verdict, “Guilty of tbe felony and murder in manner and form as charged in tbe bill of indictment.” Tbe brief of tbe prisoner objected to 'a judgment on sucb verdict as bis last assignment of error. Tbe Court ex mero motu sent down an inslanter cer-tiorari (S. v. Randall, 87 N. C., 571; S. v. Craton, 28 N. C., 164), to wbicb tbe clerk returned that tbe entry on tbe docket showed that tbe jury returned their verdict in writing as follows :

“1. Is tbe defendant now insane? Answer: No.

“2. Is tbe defendant guilty of tbe felony and murder of wbicb be stands charged? Answer: Guilty of murder in tbe first degree.”

As tbe judge filed as a part of tbe record bis -formal judgment, in wbicb be recited that tbe jury “rendered tbe verdict as appears of record, finding tbe said L. M. Sandlin guilty of murder in tbe first degree,” it is not easy to understand bow so material an error in tbe transcript could have occurred. This being an appeal in forma pauperis, it is possible that tbe transcript may have been copied by another, and tbe very careful and painstaking clerk must have been inadvertent to tbe omission of tbe exact form of tbe verdict as rendered. It is- tbe duty of tbe clerk to certify that tbe transcript is “a true, full, and perfect transcript of tbe record,” and too much care cannot be taken by clerks to verify the correctness of tbe transcript in all cases, both civil and criminal.

The homicide in any phase of tbe evidence, if believed by tbe jury, was murder in tbe first degree, and one of peculiar atrocity. If there are extenuating circumstances they do not appear in this record. There could hardly be any extenuating circumstances, if tbe evidence sent up is a true statement of tbe occurrence.

No error.