#### STATE v. JOHN MATTHEWS.

(Filed 5 March, 1913.)

1. Homicide — Murder — Circumstantial Evidence — Questions for Jury.

Where upon a trial for murder circumstantial evidence for a conviction is relied on, and the circumstances tend to show defendant’s guilt, so that the deduction of guilt from 'the circumstances is not merely conjectural or probable, they should be submitted to the jury, for they are the judges of the force or weight of the evidence of the defendant’s guilt.

2, Homicide — Murder—Circumstantial Evidence — Close Scrutiny— Instructions.

Where circumstantial evidence is relied on for a conviction of a criminal offense, the'court should warn the jury that the evidence, from its character, should, be closely and cautiously scanned by them before rendering a verdict of the. defendant’s guilt.

*5433. Homicide — Murder—Circumstantial. Evidence — Motive—Instructions for Jury.

Upon a trial for murder, the evidence in this ease of improper relations between the prisoner and the wife of deceased as to motive; threats made by the prisoner on the life of the deceased, one of which, that he would kill the deceased on a day certain, appeared to have been carried'.out by the murder of deceased on the day named; threats against deceased’s wife should she disclose communications of this nature he had made- to her; his unwillingness for deceased to visit his own wife, who was living on land the prisoner claimed to have rented; the finding of .the body of the deceased at his own home with a gun-shot wound in his head, while his gun remained on a rack in the room, the circumstances tending to show that prisoner was in a position to have inflicted it, when made, with other circumstances tending to show the prisoner’s guilt, is sufficient to be submitted to the jury, and for them to find thereon that the defendant was guilty.

Appeal by defendant from Gime, J., at January Term, 1913, Of FRANKLIN.

The prisoner was indicted for the murder of one Will Clifton, and co'nvieted of murder in the second degree. From the judgment rendered,.he appealed.

The only question presented by the appeal is as to the legal sufficiency of the evidence. This .question was presented by a prayer for instruction that, upon the whole evidence, it is the duty of the jury to render a verdict of not guilty. The evidence for the State tended to show that the home of the deceased, and his wife, Clarinda Clifton, was in Franklin County, and that a short time before the homicide the deceased Clifton had been working near Spring Hope, in Nash County, and on the Sunday before, the deceased returned home. On the morning of the homicide the deceased, his wife, and the defendant were at the house of a neighbor,’ about one-half of a mile away, and after Clifton and his wife left for their house, the defendant was seen going in that direction. The deceased left his house with his gun about 11 o’clock, and some time between 11 and 12 o’clock a shot was heard in the locality in which his body was afterwards found, near his home. About 20 minutes after the shot was heard, the defendant was ‘seen about three-*544quarters of a mile from tbe bouse of tbe deceased. Tbe evidence for tbe State further tended to sbow that, in tbe absence of tbe deceased, tbe defendant bad been in tbe habit of visiting the wife of tbe deceased. This was admitted by Clarinda Clifton in her testimony as a State’s witness.

Richard Alston testified: “I knew Will Clifton. He is dead. Clarinda Clifton was bis wife. They lived at tbe same bouse in October last. I lived one-balf mile away. They lived bff tbe Halifax Road and-public path from Gold Mine Road to Mr. Wood’s store. I remember tbe Sunday Clifton was -killed. He, his wife, and defendant were at my bouse about two hours by sun. Just came there. Stayed 15 or 20 minutes after I got there. I sent a man a gallon of wine by defendant; be was in a buggy. Clifton and wife were walking. Defendant. left my bouse first, about 8 or 9 o’clock. Defendant went towards Clifton’s bouse. I beard no conversation between them. Will Clifton left my bouse sober. I saw defendant again that evening, about half an hour or an hour by sun, near my garden; be was on bis way borne; bis horse walking along. Defendant lived two. miles from Will Clifton’s. In tbe afternoon be came from tbe same' direction be went in tbe morning. I live nearest to tbe Oliftons. I went to their bouse that night. Will Clifton was dead; lying on face and wound on back of bis bead. I could have put my fist in it. Clifton bad been down about Spring Hope. He went away in January, and I bad not seen him since. Will Clifton and wife left my bouse about 9 or 10 o’clock that morning. When defendant left my bouse be took a road away from tbe Oliftons’ bouse; at least, be did so far as I saw him.”

Clarinda Clifton testified: That on tbe Sunday before her husband came home, tbe defendant came to ber bouse, and one William Alston came after him, and that tbe defendant said to Alston: “Hell is-going to be to pay here. Ed Taylor and Ellerson Jefferson bad gone to Spring Hope to get Will to come home. He phoned to Penny Mitchell yesterday that be was coming, and I came here last night and lay in tbe bushes until 2 o’clock with a double-barrel gun to kill him if be did come.” She further testified that, “On Thursday before Will was killed *545on Sunday, tbe second Sunday in October, tbe defendant came to tbe field where I was picking cotton, witb bis gun in bis arms, and said, 'Will did not baye any right there.’ I said, ‘Will says be has a right wheresoever I am.’' He said, 'Well, N. C. Gupton says he’s not got any right here, and be shan’t stay. He may live to see tbe sun rise tbe third day, but be will never see it rise and set tbe fourth day.’ We went on out to tbe end of tbe row, and be said: £You may have to tell something — they may make you tell something. Don’t you call my name; you put it on some one else. I'don’t want to kill you, but I will do it. I started to kill you once tbe year you stayed at Rufus Kearney’s, but didn’t.’ I did not see defendant any more until that Sunday morning, tbe second Sunday in October, between 8 and 9 o’clock. "Will and I went up to Richard Alston’s; be and Richard were standing at tbe back of tbe bouse. Had horse bitched to tbe buggy, and jug in buggy. I went to tbe kitchen then, and saw him at tbe door' drinking water. Did not see him any more until Monday night. My husband went over to camp. Came back, and be and I went home. This was about 11 a. M. Carried iny little child witb me. Will went into tbe bouse, got bis coat and .got bis gun. Went out tbe path towards tbe Sbocco Road. That' was between 11 and 12 o’clock, and I never saw him alive again. I went over to Albert Alston’s, and when I got back between 5 and 6 o’clock in the evening — me and tbe four children — Will was lying on tbe floor dead. He bad bis feet towards back of bouse; bead towards fireplace; sort of between tbe beds, lying on face; arms rather under him. Saw blood only where be was lying. He lay on two quilts and a pillow. I tried to give alarm. Sent two little boys after Mr. Manning. He came. They reported it tó tbe coroner. He came. Monday morning. On tbe first day of tbe preceding January Will bad gone to Spring Hope. Defendant visited me. He was there sometimes every day. Had 4 acres in cotton near there. I beard a gun about 4 o’clock that Sunday evening in tbe direction of that bouse. Albert Alston and bis wife also beard it. I said, ‘There is some one shooting.’ She said, ‘Some one is always shooting. *546Tbey don’t regard Sunday.’ Wben I got back, Will’s gun was in tbe rack, and bis coat banging up. He was in bis sbirt sleeves. On tbe day of tbe inquest, be (defendant) said to me, ‘Mrs. Clifton, tbey is trying .to put this murder case on me, and if you tells anything that I bave said, I am going to do everything I can against you, to send you to Raleigh; and if you and I ever bits tbe ground together, there will be another day of it.’ He went down tbe road and spoke to Sarah Alston. I was married to Will twelve years. Have six children. I am 34 years old. I was at Warrenton tbe second Sunday in October. Went with Albert Alston in bis buggy. Left about 8 that morning. Got home an hour and a half by sun. I bad not grown tired of Will. Did not offer $100 to bave him killed. I was in jail a while after coroner’s inquest. Albert Alston bad been there in daytime and also at night. I bad rented an ox from him. Yes, I said tbe gun fired in the direction of our bouse. Albert Alston never knew me but once in bis life. That was about four weeks before Will came home. John Matthews came there often. No other men came there. I did not handle my husband’s gun, but it was loaded. When I got there my husband’s feet were cold, but be was not stiff.”

A witness by tbe name of Yan Burt testified: “I live in that section of tbe country. I know tbe defendant. He passed my bouse on Saturday before, about 1 o’clock. He asked me if I bad seen Bill. I to.ld him I bad seen him one time. He said, 'What did he say?’ I told him Bill said be bad come home now, and was going to stay. Defendant said, 'Well, if be has come home, be is not going to rule that plantation this year. I rented it, and am going to rule it.’ On Sunday, about 11 o’clock, I beard a gun fire right in direction of Bill’s bouse. When I was called to Bill’s bouse that night, be was dead: No. 4 shot killed him. Did not bear a gun shoot that afternoon. I live one mile or one mile and a half from there.”

Ed. Alston testified: “I recollect tbe day of tbe killing. My wife and I were going down to my sister’s marriage, between 10 and 11 o’clock, near Charles Alston’s old storehouse. We beard a gun fire in tbe direction of Clarinda Clifton’s bouse. I drove on and came to railroad crossing three-fourths of a mile *547further on. Defendant was coming down the railroad. He spoke to me, and said: ‘I am on a trade for a dog, and on my way down to Newsom’s.’ He was in a buggy by himself. It was about twenty minutes after the gun fired when I saw the defendant. The place was about three-fourths of a mile from Olarinda’s.”

Ed. Taylor testified: “Live in Gold Mine Township. Knew Will Olifton. He lived last'year in Spring Hope. Saw him there. He came home 23 September, 1912. I went to Ola-rinda’s house 6 August, 1912, in company with Penny Mitchell. About three days later I had a consultation with the defendant in the road in front of my door. He said to me, ‘I suppose you went down to see Olarinda.’ I said, Wes.’ He asked me who went with me. I told him Penny Mitchell. He asked me, ‘What did she say to Olarinda?’ I told him that she told Cla-rinda she wanted to bring her up to the house to care for her while she was si'ck. He said, ‘Well, she and no one else is going- to bring her away from down there.’ This was about 29 August, 1912.”

This closed the testimony. The court refused the instruction requested by the prisoner as to the sufficiency of the evidence, to which he excepted.

Attorney-General Bichett and Assistant Attorney-General Calvert for the State.

W. M. Person for defendant..

Walkeb, J.,

after stating the case: We are again called upon to decide what is often a very perplexing question, whether there is any evidence for submission to the jury. It is not apt to be a difficult one when the evidence is direct, and especially when it is credible, for belief in that case is generally the immediate and necessary result; whereas, in cases of circumstantial evidence, processes of inference and deduction are essentially involved, frequently of a most delicate and embarrassing character, liable to numerous causes of fallacy, some of them inherent in the nature of the mind itself, “which has been profoundly compared to the disturbing power of an uneven mirror, imparting its own nature upon the true nature of things.” Wills on

*548Circumstantial Evidence, p. 33. So that Baron Alderson said in. Reg. v. Hodge's, 2 Lewis Or. Cases, 227, “it-was necessary to warn the jury against the danger of being misled by a train of circumstantial evidence. The mind was apt to take pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the inore ingenious the mind of the individual, the more likely was it, in considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to -take for granted some fact consistent with its previous theories and necessary to render them complete.” It has been concluded, therefore,, that such evidence should always be closely and cautiously scanned. We cannot expect to introduce mathematical precision into our reasonings and judgments, and consequently not into our deductions, and therefore the law regards it as sufficient if guilt is established to the exclusion of every reasonable doubt, or, as it is sometimes put, of every reasonable theory or hypothesis of innocence. If the facts and circumstances tend to show the prisoner’s guilt, so that the deduction of it from them is not merely conjectural or probable, but a fairly logical and legitimate one, we cannot say that there is no evidence, but should submit the case to the jury to find whether, by them, they áre convinced of the fact of guilt beyond any reasonable doubt, they being the judges of the force or weight of the evidence. S. v. Vaughan, 129 N. C., 502. The rule is well settled that if there be absolutely no evidence, or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue, or if it does not furnish more than material for a mere conjecture, or merely shows it possible for the fact to be as alleged, the court will not leave it to the jury for them to find the fact. This was held in S. v. Vinson, 63 N. C., 335; S. v. Rhodes, 111 N. C., 647; Brown v. Kinsey, 81 N. C., 245, and in the numerous cases cited iii Byrd v. Express Co., 139 N. C., 273, where the subject was fully discussed.

After a careful analysis of the testimony, we have reached the conclusion that the judge did not err in submitting it to the jury. The circumstances pointed with convincing force to the prisoner as the perpetrator of the crime. It was admitted that *549a homicide bad been committed, and there was evidence from, wbicb tbe jury might well have found that the deceased could not have killed himself. When found, his body was lying outstretched upon the floor, with an -ugly and a mortal gun-shot wound in the head, and his gun was in the rack. There was no evidence connecting any one but the prisoner with the firing of the fatal shot. Shortly after the report of the gun was heard, he was seen riding from the direction of the house, and- about as far from there as the distance that would be traversed in the time which had elapsed since the report of the gun was heard. It was shown that he was evidently angry with the deceased, and intended to take his life. He had made different threats that he would kill him, and actually named the day on which it would be done, and it happened just as he had foretold it. On the Thursday before the day of the homicide, he said, “He may live to see the sun rise the third day, but will never see it rise and set the fourth day,” and his menacing words were verified with fatal accuracy. But this is not all, nor even the half of it. Just after he had uttered this threat to the wife of the deceased, on Thursday, in the cotton field, they walked to the end of the row where she had been picking cotton, and he warned her not to call his name if they made her tell anything about what he had said or done, and threatened, if she impli-. cated’him in the homicide, that he would kill her, and advised her to charge some one else with it. He also stated in her hearing, and at her house, to Will Alston, when he heard that Will Clifton, the deceased, was coming home, that “hell would be to pay there.” He added that two men had gone to Spring Hope to bring Will home, and Will had telephoned that he was coming, and that he had gone to Will’s place and laid in the bushes until 2' o’clock with a double-barrel gun to kill him if he did come. On the day of the inquest, the prisoner also told the witness Clarinda Clifton, widow of the deceased, that they were trying “to put this murder case on him,” and if she told on him, he would do everything against her to send her to Raleigh-meaning the penitentiary, and that if “they ever hit the ground together, there would be another day of it.” The jury might reasonably have found that he meant by this language to admit *550the killing, and that there would be another homicide if she told what he had said to her. There was also proven a strong motive for the killing, as the evidence shows that the prisoner was the paramour of deceased’s wife, and not only that, but he denied the right of the deceased to occupy the land on which was his home, and was angry about it.

It would be useless to examine the evidence further in detail. Our conclusión is that it was sufficient in probative force for the jury to find, if they saw fit to do so, that the prisoner was guilty, and it is quite as strong as that which was submitted to the jury in S. v. Wilcox, 132 N. C., 1120, with the approval of this Court, and we may add that, in our opinion, it ’is of a much more convincing nature. The cases of S. v. Brackville, 106 N. C., 701; S. v. Rhodes, 111 N. C., 647, and S. v. Goodson, 107 N. C., 798, are distinguishable, as the decisions in them were based upon facts essentially different from those in this record. There are facts in this record which were not in those cases, and which the Court regarded as missing links necessary to forge a complete chain ■ of circumstances, and emphasized the lack of them as being fatal to the successful prosecution of the case.

No error.