#### STATE v. WALTER SHELTON.

(Filed 5 November, 1913.)

1. Homicide— Murder— Premeditation — Drunkenness — Trials—Instructions — Harmless Error.

Where tbe defense upon a trial for murder is that at the time of and immediately before the homicide the prisoner had been rendered incapable of forming a deliberate and premeditated purpose to kill, by reason of drunkenness, the burden is upon him to show this to the satisfaction of the jury; and, in this ease, it appearing that the judge clearly charged the jury upon the degree of proof necessary for the State to convict, it is held harmless error that he charged that the defendant must prove his defense “beyond a reasonable doubt,” it appearing that the jury could not have been misled; and further, there is no evidence that at the time of the homicide the defendant was in such condition.

2. Homicide — Murder—Premeditation—Evidence.

For the defense of drunkenness to be available upon a trial for murder in the first degree, it must be shown that, at the time of the homicide, the mind of the prisoner was so affected by drink as to render him incapable of premeditation and of a deliberate purpose to kill; but when the evidence shows that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants, to whatever extent, in order to carry out the design, will not avail as a defense.

*514Appeal by defendant from Lane, J., at August Term, 1913, of ROCKINGHAM. •

Indictment for murder. Tbe defendant was convicted of murder in tbe first degree and sentenced to death. From tbe judgment pronounced, be appealed.

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

P. T. Stiers and C. O. McMichael for defendant.

Brown, J.

Tbe defendant offered no evidence and tbe case was tried upon tbat introduced by tbe State. Tbis evidence tends to prove these facts:

Tbe defendant was tbe husband of Lula Shelton. ' It is evident tbat they lived unhappily together. About two weeks prior to Christmas, 1912, tbe .wife refused to live with tbe defendant any longer on account of bis conduct, and she went to tbe borne of her mother.

On Christmas Eve defendant went there and pointed a pistol at bis wife and told her "be would kill her if she did not live with him. He then asked for bis overcoat, and as be was about to leave, said to bis wife’s sister tbat be intended to kill bis wife when she put her foot off tbe lot, and instructed her to tell bis wife.

There is no evidence tbat be was so drunk on this occasion tbat be was irresponsible and did not know what be did and said.

About ten days before tbe homicide defendant told one Adkins be was going to kill bis wife because she would not live with him, and be told at different times numerous other witnesses tbat be was going, to kill bis wife and tbe whole Trent family, being tbe family of his wife; that she bad sworn to lies on him.

On 24 March, 1913, tbe wife was at tbe home of Mrs. Jennie Black in Reidsville. She was sitting in a room with several other people, when tbe defendant came in, walked up to bis wife and started to put bis band in bis pocket.' His wife threw up both bands and started towards him, when be pulled out bis pistol and shot her twice. Tbe wife fell and died in seven or eight minutes.

*515A sister of tbe defendant then pushed him towards the door and he went out into the yard, where he was arrested by two men, and as he was being carried away, he said: “I did what I said I was going to do — what I wanted to do. I put three balls in her, and I will go to the electric chair for it.” He repeated this statement afterwards to other witnesses.

The exceptions to the evidence are without merit and are not of sufficient importance to require discussion.

The third exception relates to a remark of the judge. Counsel for the defense in addressing the court as to the incompetency of a conversation between the defendant and his wife, maintained that this kind of evidence was analogous to that prohibited by section 1631 of the Eevisal; that if the witness Effie Trent did not state the truth about the conversation, her sister Lula Shelton being dead, there would be no one to deny it.

The judge remarked from the bench and in the hearing of the jury that the defendant could deny it; and to this remark the defendant excepts. The exception ought not to be sustained. Section 1631 has no application whatever to criminal cases. The conversation between the husband and the wife in which he threatened to kill her was entirety competent. The judge was simply replying to an unsound legal proposition that was being argued by the counsel for the defendant, and his remarks were in no way improper.

He subsequently, in his charge, warned the jury that they could not consider to the prejudice of the defendant the fact that he did not go upon the stand and testify as a witness. The exception chiefly relied on by the defendant is to the following extract from the charge of the court:

> “If you find from the evidence beyond a reasonable doubt that the defendant, previous to the time he killed his wife, if you find he did kill her, was so intoxicated as not to be able to form a specific intent and to deliberate and premeditate, but was not insane by reason of it, as before explained to you, so as not to know the difference between right and wrong, and with a deadly weapon slew his wife with malice, you will find him guilty of murder in the second degree.”

*516His Honor erred in using tbe words “beyond a reasonable doubt” in that connection, but we do not think the error was very material and of sufficient importance -to warrant another trial.

The burden of proof is on the State at all times to prove the willful, deliberate, and premeditated killing, and his Honor so instructed the jury very clearly, but where the defendant claims that at the time of and immediately before the homicide he had been rendered incapable of forming a deliberate and premeditated purpose to kill by reason of drunkenness, the burden is on him to prove it, not beyond a reasonable doubt, but to the satisfaction of the jury.

The charge of the court upon the burden of proof and the doctrine of reasonable doubt is so full and clear that it would scarcely have been misunderstood.

His Honor said: “This defendant not only pleads not guilty to this charge against him, but when he comes into this court and is put upon his trial, is presumed to be innocent of any crime. This is no mere idle presumption to be disregarded at will, but is a fundamental principle of the law of this State, and applies in this case as in all other trials for violation of the criminal laws. And a defendant is covered with this presumption of innocence until the State by competent evidence rebuts such presumption, and before you can return a verdict of guilty against this defendant of any degree of crime, the State must have satisfied you of his guilt, and that to the exclusion of every reasonable doubt. That is the burden that is upon the State in this case, I repeat, to prove the guilt of this defendant beyond a reasonable doubt, before you can convict him of any degree of homicide.”

We are further of the opinion that the charge was harmless error, for the reason that there is no sufficient evidence in the record that at the time of the homicide he was in such a mental condition, brought about by excessive drinking, as to render him incapable of committing deliberate and premeditated murder.

S. v. Murphey is a leading case on this1 subject, and the question is fully discussed by Mr. Justice Hoke.

*517In tbat case it is stated tbat there was evidence tbat at tbe time of tbe killing “tbe mind of tbe prisoner was so affected, at the time-, by voluntary drunkenness tbat be was incapable of committing murder in tbe first degree.”

In- tbe opinion tbe learned judge says: “It is very generally understood tbat voluntary drunkenness is no legal excuse for crime, and tbe position bas been beld controlling in many causes in tbis State and on indictments for homicide. Tbe principle, however, is not allowed to prevail where, in addition to tbe overt act, it is required tbat a definite specific intent be established as an essential feature of tbe crime. In Clark’s Criminal Law, p. 72, tbis limitation on tbe more general principle is thus succinctly stated: ‘Where a specific intent is essential to constitute crime, tbe fact of intoxication may negative its existence.’ ¡' -, ¡

“Accordingly, since tbe statute dividing tbe crime of murder into two degrees, and in cases where it becomes necessary, in order tp convict an offender of murder in tbe first degree, to establish tbat tbe killing was deliberate and premeditated, these terms contain, as an essential element of tbe crime of murder, a purpose to kill previously formed after weighing tbe matter (S. v. Banks, 143 N. C., 658; S. v. Dowden, 118 N. C., 1148), a mental process embodying a specific definite intent; and if it is shown that an offender, charged with such crime, is so dtrunlc tbat be is utterly unable to form or entertain tbis essential purpose, be should not be convicted of tbe higher offense.

“It is said in some of tbe eases, and tbe statement bas our unqualified approval, tbat tbe doctrine in question should be applied with great caution. It does not exist in reference to murder in tbe second degree, nor as to manslaughter. It bas been excluded in well considered decisions where tbe facts show tbat tbe purpose to kill was deliberately formed when sober, though it was executed when drunk, a position presented in S. v. Kale, 124 N. C., 816, and approved and recognized in Arzman v. Indiana, 123 Ind., 346, and it does not. avail from tbe fact tbat an offender is, at tbe time, under tbe influence of *518intoxicants, unless, as hereinbefore stated, bis mind is so affected that be is unable to form or entertain tbe specified purpose referred to.”

Wharton sums up tbe matter by saying that “a person who commits a crime while so drunk as to be incapable of forming a deliberate and premeditated design to kill is not guilty of murder in tbe first degree. Tbe influence of intoxicants upon tbe question of tbe existence of premeditation, however, depends upon its degree and its effect on tbe mind and passions.” Homicide (3 Ed.), p. 811.

All tbe authorities agree that to make such defense available tbe evidence must show that at tli)e time of the TciUwig tbe prisoner’s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill.

As tbe doctrine is one that'is dangerous in its application, it is allowed only in very clear cases; and where tbe evidence shows that tbe purpose to kill was deliberately and'premedi-tatedly formed when sober, tbe imbibing of intoxicants to whatever extent in order to carry out tbe design will not avail as a defense.

In tbe rulings of tbe court and tbe charge to tbe jury tbe defendant has bad tbe full benefit of bis plea of insanity, which was very properly repudiated by tbe jury, as there is as little evidence to support that as there is tbe plea that bis mind and reason at tbe time be slew bis wife were so completely dethroned by intoxication that be could not be guilty of a willful, delibérate, and premeditated murder.

The evidence that tbe defendant formed and expressed to several different persons at various times, extending over a period of two months, tbe settled purpose to kill bis wife is overwhelming.

On Christmas Eve, 1912, be sought bis wife¿ pointed a pistol in her face, and told her be would kill her if she did not live with him. There is no evidence that on these occasions be was drunk and did not know what be was doing.

*519None of tbe witnesses wbo were present at tbe homicide say tbat defendant was drunk, and one of tbe witnesses, Moricle, said be bad seen defendant under influence of whiskey, but on this occasion “be looked like a sober man.”

Witness Adkins testifies to a conversation ten days before tbe homicide, in which defendant told him be intended to kill bis wife because she would not live with him. “At tbe time of tbe conversation I could not say whether Shelton was drunk or not. He bad bad a drink. He drank right much when be was not at work. He was not at work at this time. It bad not been long since be quit work. I saw him about once a week, and be was always drinking.”

Witness Tally testified tbat defendant tpld him tbat be intended to kill bis wife; tbat be sawi him afternoon of tbe homicide, and “bis condition seemed to be all right.”

Witness further said: “I have known Shelton eight or ten years. . Sometimes be was drinking, sometimes be was not. You could call him drunk, but be was going. Sometimes for two or three days be would drink, sometimes be would not. He seemed to be sober on tbe day of tbe homicide.”

Witness Walker testified tbat be bad conversation with defendant tbe morning of tbe homicide. “I am not able to tell what bis condition was.” Witness further stated tbat defendant before tbat bad come to tbe store drunk; be generally came in drinking, and witness asked bis brother to keep him out.

Witness further testified tbat “tbe defendant a few hours before tbe killing bad asked witness, ‘If you were going to kill yourself, where would you shoot?’ I told him I bad never thought of such a foolish thing. A few hours before tbe killing, 1 bad told my wife tbat I believed Shelton was crazy.”

Witness Michael testifies to bearing defendant say on tbe evening of tbe homicide tbat be bad done what be aimed to do; and on tbe subject of habits, be said:

> “I have known Walter Shelton four years. I live in tbe same neighborhood with him. I have beard of bis drinking habits for tbe last two years. His general reputation-in tbe neighborhood is tbat of a drinking man. On tbe evening of tbe killing be was as sober as I usually saw him.”

*520Witness Myrick testifies: “I have known Walter Shelton about fifteen years and lived in Reidsville practically all the time Walter has. He drank a good deal. Sometimes he would act kinder foolish. I have heard about his knocking a fellow in the face with a beer bottle. The evening of the homicide he looked like he was drunk.”

Thomas lebass testified as follows: “During Christmas week Shelton made a statement to me. He said he had a wife and was going to kill her, and I says, ‘Walter, do you know you are going to get in trouble? There will be another Allen case.’ He said he was going to kill her. I asked him what for. He said because she would not live with him.

“I asked him if she was a nice lady. Said yes, she was a nice lady, and give me that to understand right then. I told him to go home, he was drunk. Said he was not drunk, and he was not going home, either. I saw him on the day of the homicide, about 75 or 100 yards, before and after. He was going up> the opposite side from where I was standing, with his right hand in his right coat pocket.. I just noticed him going along. I did not pay much more attention to him. He was walking right peartly, as usual, and I talked there about three minutes, when Miss Effie Trent came running down the street and said her sister had been shot.

“I ran to the house as soon as I could get there, and found her on the bed, shot and dying. She lived about sis or eight minutes after I got in the house. I saw Shelton against the front fence along the street. I took hold of him one time when he was about to get away.

“He was drinking some, not drunk. He stayed a little intoxicated most of the time. I don’t say the 10th or 11th notch. That would be pretty good speed.”

This isAhe entire evidence relating to the condition of the defendant. In our opinion it fails to show that at the time of the homicide the defendant was so drunk as, in the language of Justice Hoke, “to render him utterly incapable of forming a deliberate and premeditated purpose to kill.”

*521It tends rather to prove that the defendant had been for two months deliberating and premeditating the murder of his wife, and that if he was drinking at all on the day of the homicide, it was to assist him to put his deadly purpose into execution.

We have given this ease a very careful examination, and are constrained to conclude that there is

No error.