#### STATE v. B. T. VANN.

(Filed 19 February, 1913.)

1. Murder — Jurors—Disqualification—Challenge Allowed — Power of Court — Practice.

When on a trial for murder a juror states, after be has been passed by the defendant, but before he has been sworn, that he was opposed to capital punishment, and that he would not agree to a verdict of guilty even if the evidence, under 'the court’s instruction, should satisfy him beyond a reasonable doubt of the defendant’s guilt, the court may, in its discretion, allow the State to challenge him for incompetency to serve in the case, and sustain the challenge; and it is competent for the court to discharge the juror on its own motion, if he appears to be disqualified.

2. Murder — Evidence—Identification—Premeditation.

On this trial for murder, evidence was competent, on behalf of the. State, that the prisoner had several times sold liquors, in the presence of the deceased, at his place of business, it being confined to the purpose of identifying the prisoner, under the circumstances, and also for the purpose of showing premeditation, there being evidence of previous threats and of the prisoner’s purchasing a pistol in order to carry them out, which was actually used.

3. Murder — Evidence—Premeditation—Verdict—Harmless Error.

On appeal from a conviction of murder in the second degree, evidence of premeditation, if erroneously admitted, is harmless, for the jury, by their verdict, have found in the prisoner’s favor on that question.

4. Murder — Evidence—Identification—Exhibits.

On a trial for murder, the body of the deceased was found in a dense thicket, after the time of the alleged homicide, and there was evidence of his identification by his clothes and certain articles found on his person: Held, no error in permitting *535these articles to be exhibited to the jury; and it not appearing to have prejudiced the prisoner, their exhibition was merely incidental, and it does not render the evidence incompetent.

5. Murder — Trial—Demonstrations—Appeal and Error — Court’s Discretion.

A demonstration to the prisoner’s prejudice, occurring during his trial for murder, which was promptly and severely rebuked by the trial judge, who immediately instructed and cautioned tbe jury not to be influenced by it in the slightest degree, will not be. held for reversible error on appeal, the conduct of the trial being left to the presiding judge, without interference, except in extreme cases, fit v. Wilcox, 131 N. C., 707, cited and distinguished.

6. Witnesses — interest—Evidence—Instructions.

The charge of the court in this case upon the weight to be given to the testimony of interested witnesses is approved under the rulings of S. v. Byers, 100 N. C., 512.

7. Murder — Evidence — Premeditation — Instructions, How Considered — Court’s Expression of Opinion.'

The court having charged the jury that they should consider all the evidence in the case, “both that of the State and that of the prisoner,” another portion of the charge, that the law presumed malice from a killing with a deadly weapon, and the prisoner would be guilty of murder in the second degree, unless he had shown such facts and circumstances as would reduce the killing to manslaughter or excusable homicide, should be construed with the charge as a whole, and, thus construed, is not objectionable as requiring the jury to consider only the testimony introduced by the prisoner.

8. Murder — Judgments—Excessive Punishment — Appeal and Error.

Upon the evidence in this trial for a homicide, the objection that the punishment imposed is excessive is not sustained on appeal.

Appeal from Lane,, J., at September Term, 1912, of Pasqtto-TANIC.

Tlie prisoner was indicted for tbe murder of Oliver Layden, and was convicted of murder in tbe second degree. 'Tbe testimony tended conclusively to sbow tbat tbe defendant bad committed tbe murder. Oliver Layden left bis borne at 4 o’clock on tbe morning of 11 July, 1912, stating to bis mother tbat be was going to Elizabeth City to have bis watch mended, and *536never returned to bis home. He was seen several times in Elizabeth City and at other places that day, in company with the defendant. They were riding together on bicycles, which were, on the same day, left at Cartwright’s shop. The prisoner disappeared, and as he had been the last one seen with the deceased, several persons went to Norfolk in search of him. He was found at the home of his brother, Ebe Yann, in Berkley, a town in Virginia near the city of Norfolk. When questioned as to the whereabouts of .Oliver Layden, he seemed embarrassed, and he and his brother acted in a very suspicious manner. The prisoner ran from the .house, jumped over a fence and attempted to escape. He was overtaken and arrested, but before his arrest, .being asked where he had left Oliver, he stated, at first, that he had been with him at his brother’s 'house in Berkley, but was not satisfied there, and had gone with him to Norfolk, though he would not say where he was in Norfolk. He afterwards said that he was not in Norfolk, but in Brooklyn, at 22 Catherine Street, and when further questioned, he said that he had left him in New York at the station; that Oliver had $11 and told him that he would not stop until he had crossed the. ocean. The last of July or the first of August a dead human body was found about 4 miles from Elizabeth City, in a dense thicket, at a place called the “Desert,” and also the clothing and picture of deceased, and other articles identified as his. A pistol of 38 caliber was also found with two empty chambers, and there were two holes made by the pistol shots in the coat and underclothing. The pistol belonged to the prisoner, and was found in the bushes near-by. The appearance of the place indicated that the body had been dragged from the railroad track to the place where it was lying concealed from the view of passers-by. The coat had been scorched by the fire from the pistol, showing that the person who killed the deceased was very close to him when he shot. There were facts and circumstances in evidence ’ which tended to connect the prisoner with the homicide, but not necessary to be stated. He testified in his own behalf and admitted that he killed Layden, and that he acted in self-defense; Layden, after a quarrel between them, having advanced on him with a *537drawn knife, wbicb put bim in fear of bis life, and tbat be sbot and killed Layden believing, at tbe time, tbat bis life was in peril. He admitted having fled to Norfolk and tben to New York by way of Cape Charles, but said be was badly frightened, and left on tbat account. He further stated tbat be dragged tbe body to'the place where it was found and threw tbe bicycle, pistol, and knife in tbe bushes because be was “scared,” and did not know what be was doing; and be gave tbe same reason for making tbe conflicting statements to the Laydens and tbe sheriff at Berkley about tbe matter. Mrs. Layden, mother of tbe deceased, testified tbat Oliver neve'r carried a knife, except a small pocket-knife, wbicb she found in bis pocket after be bad gone.

There was a judgment upon tbe verdict, from wbicb tbe prisoner appealed, after duly excepting to certain rulings of tbe court, set out in tbe opinion.

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

Ward & Thompson, W. M. Bond, and P. W. McMullan for defendant.

Walker, J.,

after stating tbe case: Tbe prisoner’s first exception relates to tbe exclusion of ~W. E. Hinton as a juror from tbe panel. It appears in tbe ease tbat Hinton, one of tbe special venire, was passed by tbe State and accepted by tbe prisoner. He tben voluntarily stated to tbe court tbat be was opposed to capital punishment, and tbat be would not agree to a verdict of guilty even if the evidence, under tbe court’s instruction, should satisfy bim beyond a reasonable doubt of tbe prisoner’s guilt. The court, in tbe exercise of its discretion, permitted tbe State to challenge tbe juror, and upon said challenge, it being found tbat be was not indifferent or qualified to serve as a juror, tbe court sustained tbe challenge and he-was excused. We do not perceive any error in this ruling. Tbe precise question was raised in S. v. Boon, 80 N. C., 461. In tbat case, one of tbe jurors was called and passed without a challenge to tbe prisoner, who accepted him. When be was about to be sworn as a juror, be stated to tbe court tbat be *538was related to tbe deceased and tbe prisoner. At bis own request, tbe court directed him to stand aside and declined to have bim sworn as one of tbe jurors. Tbe exception of tbe prisoner to tbis ruling was overruled. A similar decision was made in S. v. Adair, 66 N. C., 298, where twelve of tbe venire bad been tendered and accepted by tbe prisoner, and duly sworn as jurors, but before they were impaneled it was found that one of tbe jurors was related to two of tbe prisoners, wbicb fact was not known to counsel or tbe court wben tbe juror was sworn. He was .discharged, and tbe ruling was sustained by tbis Court on appeal, Pearson, G. J., saying that, “as tbe jury was not impaneled and charged with tbe case, it was within tbe discretion of tbe court to allow tbe solicitor tbe benefit of a challenge for cause, so as to secure a jury indifferent as between tbe State and tbe prisoner.” Tbis rule' of practice is well settled by tbe authorities. S. v. Jones, 80 N. C., 415; S. v. Cunningham, 72 N. C., 469; S. v. Green, 95 N. C., 614; S. v. Ward, 39 Ves., 225. Tbe rule really goes beyond tbis, for it is tbe right and duty of tbe court to see that a competent, fair, and impartial, jury are impaneled, subject to tbe right of peremptory challenge by tbe prisoner; and in tbe discharge of this duty, it may stand aside a juror at any time before tbe jury are impaneled and charged with tbe case. S. v. Jones, supra; S. v. Boon, supra, and cases therein cited. Tbe court, therefore, may act of its own motion, in furtherance of justice, and need not wait for a formal challenge, if a juror appears to be disqualified. Any other practice would be subversive of fair and impartial trials, and we do not understand tbe learned counsel of tbe prisoner to insist strenuously upon tbis exception. It may be added, that it does not appear that tbe prisoner bad exhausted bis peremptory challenges. His right to challenge is not one to sele&t, but to reject, a juror,.and, as was said in S. v. Cunningham, supra, “be obtained a jury of bis own selection, and in no point of view was be prejudiced by tbe action of tbe court.” Thompson on Trials (1889), sec. 120. He bad no vested right to a particular juror.

It appears from tbe case that tbe State was permitted to prove that tbe prisoner bad several times unlawfully sold *539liquor, in tbe presence of Oliver Layden, at bis place of business. It is evident, we tbink, from tbe case and tbe charge of tbe court, that tbis evidence was introduced to identify tbe prisoner as tbe one wbo bad committed tbe homicide, and to show premeditation and deliberation in tbe killing. As tbe prisoner afterwards admitted that be killed Layden, and as tbe jury, by their verdict, negatived tbe existence of premeditation in doing tbe act, tbe testimony was harmless, if not, in- itself, competent. S. v. Brantley, 84 N. C., 766, does not apply.

It appears from tbe evidence that tbe prisoner bad threatened tbe deceased, and about tbe same time that some of tbe threats were made, be bad prepared himself with a deadly weapon, a pistol of 38 caliber, to execute them, and be actually did use it for that purpose; and there was, in tbis case, direct evidence to connect tbe prisoner with tbe homicide — facts which did not exist in tbe Brantley case: Besides, tbe jury would hardly have acquitted tbe prisoner of tbe capital felony if they attached any importance whatever to tbis proof as showing a motive for tbe killing. They seemed to have clearly understood tbe case and tbe charge, and to have convicted tbe prisoner upon unobjectionable proof.

There was no error in permitting tbe articles found at tbe place of tbe homicide to be exhibited. Tbis was, at- least, competent for tbe purpose of identification, and if tbe prisoner was prejudiced thereby (and be does not appear to have been), it was merely incidental, and does not render tbe evidence incompetent. "W"e find it stated in Underhill on Criminal Evidence, sec. - 47, that “an article of personal property, tbe relevancy of which has been shown by its identification with tbe subject-matter of tbe crime, may be exhibited to tbe jury in tbe courtroom, either as direct evidence of a relevant fact or to enable them to understand tbe evidence, or to realize more completely its cogency and force.”

Tbe prisoner complains that, as stated in tbe case, “a ripple of laughter passed over tbe courtroom, and slightest applause— one or two band-claps by ladies wbo were present.” Tbis was caused by a question asked of tbe State’s witness, Robert Wins-low, as to what bad passed between him and defendant’s counsel, *540and tbe further question by the solicitor as to whether he had been summoned by the prisoner’s counsel. The judge rebuked this demonstration very promptly and severely, and immediately instructed and cautioned the jury not to be influenced by it in the slightest degree, and we must assume that they followed his directions. The court evidently concluded that the incident, in view of the caution given to the jury, was harmless. The conduct of the trial must be left largely to the discretion and control of the presiding judge, and it would have to be a very extreme case to induce interference • by this Court with the exercise of his judgment. He would undoubtedly have ordered a mistrial if he had thought that any prejudice to the prisoner had resulted from misconduct of the bystanders. In the absence of any finding by the judge to the contrary, we must hold, in support of his ruling, that the unfortunate disturbance was not of such character or proportions as to disqualify the jurors for the proper and unbiased discharge of their duties. We see nothing ourselves in the circumstances, as they appear in the record, to impeach the integrity of the verdict. This case is not like S. v. Wilcox, 131 N. C., 707, for there the judge found as a fact that the prisoner had been prejudiced by the demonstration of the bystanders, which was of a very serious nature and plainly calculated to influence the jury. It is more like S. v. Harrison, 145 N. C., 408, in which it was said, at p. 414: “The defendant excepts because, during the argument of the solicitor, the defendant’s counsel interrupted him to correct a statement. The solicitor made a sharp retort, whereupon a large part of the crowd in the courtroom broke into applause, which lasted several minutes. We find' that the court reproved the audience in strong terms for the misconduct, required the solicitor to suspend his speech until it could be investigated, -and called the officers before the court and inquired of them as to who engaged in the applause.” The court did substantially the same thing in this case. • In the Harrison case the exception of the prisoner, which was based upon the demonstration by the crowd, was overruled by this Court.

There is an exception to an instruction of the court upon the weight to be given to the testimony of interested witnesses, and *541to that of the defendant, but we think that the charge in this respect was very full and explicit and conformed, at least, to the rulings in S. v. Byers, 100 N. C., 512, where the judge told the jury that “it was their duty to scrutinize the testimony (of certain witnesses) carefully, because of their interest in the result, but, notwithstanding such interest, they might believe all they had said or only a part of it, or none of it, according to the conviction produced upon their minds of its truthfulness.” This instruction was approved by this Court. Besides, the judge substantially charged in this case, as did the court in the Byers case, that if -they believed the defendant’s testimony, they should acquit him. What stronger language, in favor of the prisoner, could he have used?

The prisoner further excepts because, as he says, the court charged the jury that the law presumed malice from a killing with a deadly weapon, and he would be guilty of murder in the second degree, unless he had shown, merely to their satisfaction and not beyond a reasonable doubt, such facts and circumstances as would reduce the killing to manslaughter or excusable homicide. It is objected that this instruction required the jury to consider only testimony introduced by the prisoner, and S. v. Castle, 133 N. C., 769, is cited in support of the proposition. But we do not think the instruction, when considered, not by itself, but with the context, has that effect. The court had before expressly instructed the jury that, in passing upon the matters set up in mitigation or defense, they should consider all the evidence in the case, “both that of the State and that of the prisoner.” The judge did in this case precisely what it was said in Castle's case he should have done, and which he failed to do in that case. So Castle’s case supports the charge, which should be taken as a whole, and, as we have often said, construed, not textually, but contextually. It will not do to dismember the charge and consider the several parts without any reference to each other, but it must be viewed in its entirety. S. v. Exum, 138 N. C., 600; Kornegay v. R. R., 154 N. C., 389; S. v. Lewis, 154 N. C., 632; Jeffress v. R. R., 158 N. C., 215, and S. v. Price, 158 N. C., 642. The case last cited is very much like this in the particular question raised. The *542charge of the court, as a whole, was a full and clear statement of the law as applicable to the facts, and is sustained by numerous authorities. S. v. Quick, 150 N. C., 821; S. v. Rowe, 155 N. C., 436; S. v. Simonds, 154 N. C., 197.

The prisoner, in the trial of this case, has had every advantage the law allows, and the jury, under the evidence and a clear and impartial statement of the law from the court, have rejected his version of the homicide. There was evidence of .murder in the first degree, but the jury have taken a merciful view of the case and given the prisoner the benefit of the doubt, as between the two grades of felony, and convicted him of murder in the second degree. ¥e find nothing in the record which should induce us to disturb the verdict or the sentence of the court. We cannot sustain the exception that the punishment imposed by the court is, as matter of law, excessive, under the facts and circumstances of the case, for’it is not so. If there are extenuating circumstances which do not now appear or of which the law takes no cognizance, relief must be sought from another source.

No error;