#### STATE v. GRADY LANE.

(Filed 29 April, 1914.)

1. Trials — Instructions—Evidence—Harmless Error.

Where in the trial of an action evidence has been erroneously admitted and afterwards withdrawn by the court from the jury with an instruction to them that they must disregard it, this Court will presume that the jury have obeyed the instruction of the court, and that the error has been cured.

2. Trials — Evidence Admitted — Motion to Withdraw — Objections— Appeal and Error.

When evidence has been admitted upon the trial of an action without objection from the appellant, his subsequent motion to strike it out is addressed to the discretion of the judge, and there is no appeal from his ruling thereon.

3. Appeal and Error — Exceptions—Questions and Answer — Objections to Questions.

Where exception is taken to the ruling out of an answer to a question asked a witness in the trial of a cause, it must in some way be made to appear what the expected answer would have been, so that the lower court, and this Court on appeal, may pass upon its competency or relevancy, or the exception will not be considered.

4. Homicide — Declarations—Third Persons — Admissions—Evidence —Hearsay.

The declarations of a third person that he had killed the deceased for whose murder the defendant is being tried, is hearsay, and inadmissible in the defendant’s behalf.

5. Trials — Attorney and Client — Argument — Irrelevant Matter— Courts.

While counsel in their argument to the jury are usually permitted much latitude, they should confine themselves to relevant matters, and on a trial for murder it was not error for the court to stop the prisoner’s counsel, when he was introducing irrelevant matters into his argument calculated to divert the minds of the jurors from the true issue and to prejudice the other side.

6. Homicide — Deadly Weapon — Malice—Presumptions—Murder.

Malice is presumed from the killing of the deceased with a gun, a deadly weapon, making the prisoner, on trial for the homicide, guilty, at least, of murder in the second degree, unless he proves circumstances in excuse or mitigation of the offense to the satisfaction of the jury, the burden of proof being upon him.

*3347. Homicide — Perpetration of Crime — Presumptions — Murder— ■ Statutes.

A homicide committed in the perpetration of, or in an attempt to perpetrate, a robbery will be deemed murder in the first degree, the jury being governed by the evidence under proper instructions in finding that or a less offense. Revisal, sec. 3271.

8. Trials — Courts—“Reasonable Doubt” — Words and Phrases — Instructions — Evidence.

The trial judge is not restricted to any particular formula in defining “reasonable doubt” to the jury upon a trial for homicide, and his charge in regard to the nature of the circumstantial evidence in this case and how the jury should consider it is held to be free from any error of which the prisoner can complain.

9. Appeal and Error — Trials—Instructions—Requests—Court’s Discretion.

An appeal will not lie from the refusal of the trial judge to give requested instructions after the jury had retired to make up their verdict, the action of the judge being solely discretionary under the circumstances.

10. Homicide — Murder—Trials—Confessions—Evidence.

The verdict of the jury convicting the prisoner of murder in the first degree was well supported by the evidence, under correct instructions from the court, and the prisoner’s voluntary confession to a fellow prisoner, while in the jail with him, that he had committed the crime deliberately and premeditatedly, is held to be competent evidence against him to prove his guilt as found by the jury.

Appeal by defendant from Lane, J., at August Term, 1913, of Mo ORE.

This is an indictment for tbe murder of George McCain on 28 October, 1912. It was alleged by tbe State tbat tbe prisoner knew tbat tbe deceased bad a large amount of money on bis person, and tbat be lured bim into a swamp, about 300 or 400 yards from tbe station at Aberdeen on tbe Seaboard Air Line Railway, for tbe ostensible purpose of gambling with bim, but for tbe real purpose of robbery. Tbe two were seen entering tbe swamp about 4:30 or 5 o’clock p. in. on tbe day of tbe homicide, and shortly thereafter two reports of a gun were beard, and deceased’s body was found tbat night about 8 o’clock, with a fatal wound in tbe breast and one in tbe bead, tbe side of bis *335face baving been blown off. Tbe prisoner was seen about 6 o’clock, going in tbe direction of tbe borne of bis father, Joab Lane, where be lived, and tracks of tbe prisoner were also found leading from tbe place of tbe homicide in tbe direction of that bouse. Tbe prisoner bad promised Julia J ones, who bad picked cotton on that day for bis father, to return in tbe afternoon and weigh tbe cotton for her, and be did not do so, according to her statement, though be told tbe officer, Dan McDonald, that be bad returned to bis borne for that purpose. There was evidence tending to show a close resemblance between shells in tbe prisoner’s gun and two empty shells, one found near tbe body of tbe deceased and tbe other at a place in a field where prisoner bad shot a rabbit on that day. ."When tbe body was found, tbe pockets of tbe deceased, where tbe money was, bad been turned inside out, all tbe money was gone, tbe playing cards bad been torn up, and a receipt and railroad pass with tbe name of tbe deceased on it, and a flat pint-bottle containing about a teaspoonful of scuppernong wine, were found near tbe body, tbe prisoner baving been seen with such a bottle full of wine on tbe same day, just before tbe homicide was committed, baving marks on it corresponding with those on tbe bottle that was found near tbe body. Tbe prisoner made contradictory statements as to bis whereabouts that day, and after being arrested, escaped from tbe officers, fled, and was not recaptured for several days. He made a confession in jail, to one Judson Jackson, that be bad killed tbe deceased, in a mariner indicating prerneditation and deliberation, and robbed him of tbe money, $141. He then went down tbe creek and to bis borne, where be bid tbe money under a pile of cotton. Tbe prisoner denied that be bad killed tbe deceased or bad made any confession to Jackson. He also introduced evidence to show an alibi and' to explain tbe circumstances, evidence of which was offered by tbe State. Under tbe evidence and charge of tbe court, tbe jury returned a verdict of guilty of murder in tbe first degree. Judgment was entered upon tbe verdict, and tbe prisoner appealed.

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

U. L. Spence, Clegg & Clegg, and J. T. Brittain for defendant.

*336Waleer, J.,

after stating tbe case: This case was very carefully tried in tbe court below, and tbe charge of tbe court is to be commended for its very clear and comprehensive statement of tbe law as applicable to every phase of tbe evidence, and for an equally lucid and logical analysis of tbe evidence itself, so that tbe issues were presented to tbe jury fairly and fully for both parties. There was imdoubtedly evidence of tbe prisoner’s guilt, and this was explained to tbe jury in such a way that tbe prisoner, at least, has no ground for complaint. If there is any error therein — and we do not think there is — it was committed in favor of tbe prisoner, and not against him. We will consider tbe exceptions in tbe order of their statement in tbe record.

Exception 1. When tbe court admitted tbe testimony of Dr. McLeod, that tbe empty shell was “found at tbe body,” and upon afterwards discovering that tbe witness was speaking from hearsay, ruled it out, tbe error, if any, based upon tbe misapprehension of counsel and tbe court as to tbe nature of tbe testimony, was harmless, for the court distinctly and emphatically excluded it and cautioned tbe jury not to consider it. Cowles v. Lovin, 135 N. C., 488; Livingston v. Dunlap, 99 N. C., 268; Blalock v. Clark, 137 N. C., 140; S. v. Keen, 95 N. C., 646; and more especially S. v. Flemming, 130 N. C., 688; S. v. Ellsworth, ibid., 690. We cannot assume that tbe jury disobeyed tbe court’s instruction and considered tbe evidence, but we must presume tbe contrary, unless prejudice appears or is shown by tbe appellant in some way. The burden is on him to prove it. Rush v. Steamboat Co., 67 N. C., 47; Thomas v. Alexander, 19 N. C., 385.

Exceptions 2 and 3. Tbe testimony of E. Hillman, that tbe man be saw coming towards Joab Lane’s bouse looked like tbe defendant, was competent in connection with tbe other evidence of identity. Similar rulings have been sustained by tbe following authorities: 17 Cyc., 132; S. v. Lytle, 117 N. C., 799; S. v. Costner, 127 N. C., 566; and more recently by S. v. Carmon, 145 N. C., 481, where tbe impression of tbe witness as to identity, based upon knowledge of tbe person, was less pronounced. But tbe evidence was afterwards excluded, and this rendered it harmless, even if at first it was erroneously admitted; and tbe *337same reason applies to exceptions 4/5, 8, and 9, for tbe testimony as to tbe examination and comparison of tbe three empty shells was withdrawn, with a proper caution to tbe jury in regard thereto, tbe gun and shells having been banded to tbe jurors for their inspection, by consent of tbe parties. Even then tbe court instructed tbe jury not to considér their own inspection of them, unless they found that they bad been properly identified. Tbe rights of tbe prisoner were fully guarded at every point.

Exception 6. Tbe objection to tbe testimony of Dan Chambers came entirely too late. It was discretionary with tbe judge whether be would strike it out at that stage of tbe case, after it bad been admitted without objection. S. v. Efler, 85 N. C., 585. But tbe probative force of tbe testimony was so slight that tbe prisoner could not have been prejudiced thereby. If it tended to prove anything, it was that tbe prisoner knew tbe deceased bad much money, or was in tbe habit of carrying “a big wad of money,” and this was a relevant circumstance in view of tbe strong trend of tbe evidence that robbery was bis purpose when be went into tbe swamp on tbe afternoon of tbe homicide.

Exception 7. Tbe question put to tbe witness David Knight, who was deputy sheriff, as to finding keys at tbe place of tbe homicide belonging to deceased, was not answered, nor was the nature of the evidence which was proposed to be elicited disclosed by tbe prisoner. ¥e cannot, therefore, see that there was error. In re Smith's Will, 163 N. C., 464; S. v. Rhyne, 109 N. C., 794; Sumner v. Candler, 92 N. C., 634; Knight v. Killebrew, 86 N. C., 400. We must know what tbe auswer would have been before we can pass upon tbe competency or relevancy of tbe evidence. Besides, as it now appears to us, tbe evidence was irrelevant and harmless, if we are to judge by tbe question.

Exceptions 10, 11, 12, and IS. These exceptions were taken to tbe refusal of tbe court to admit evidence of statements made by another person that be bad killed McCain, and that another person was seen going in tbe direction of tbe swamp with a gun. It was expressly decided in S. v. Boone, 80 N. C., 461, citing S. v. Duncan, 28 N. C., 236; S. v. May, 15 N. C., 328, and S. v.

*338 White, 68 N. C., 158, that on a trial for murder, evidence of the declarations of a third party that he killed the deceased are inadmissible as hearsay and as not tending to disprove the guilt of the prisoner. In S. v. Davis, 77 N. C., 483, it was held that “evidence that a third party had malice towards the deceased, a motive to take his life and an opportunity to do so, and had made threats against him, and that some time before deceased was killed he went in the direction of deceased’s house with a deadly weapon, threatening to kill him, was inadmissible,” and this case was approved in S. v. Lambert, 93 N. C., 618, citing in support of the principle S. v. Jones, 80 N. C., 415; S. v. Beverly, 88 N. C., 632; S. v. Gee, 92 N. C., 756. There is no direct testimony to connect the third person with the corpus delicti, and nothing to show that his guilt, if there is any evidence to prove it, is inconsistent with the guilt of the prisoner. S. v. Millican, 158 N. C., 617; S. v. Baxter, 82 N. C., 602; S. v. Bishop, 73 N. C., 44; S. v. White, 68 N. C., 158. The subject is fully considered by Justice Allen in the Millican case, supra. It will be seen from the citations we have made that this Court has uniformly and rigidly adhered to the rule which excludes such evidence. Recently the question was decided in Donnally v. U. S., 228 U. S., 243 (57 L. Ed., 820), where the declaration of his own guilt of the homicide was made by a person who was then in extremis and aware of his 'dying condition. The Court held the evidence incompetent, and said: “In this country there is a great and practically unanimous weight of authority in the State courts against admitting evidence of confessions of third parties, made out of court, and tending to exonerate the accused.” The Court held that technically it was not a declaration against interest, which must be of a pecuniary character, affecting some property right or interest, citing the Berkeley Peerage Case (1811), 4 Campbell, 401; Sussex Peerage Case (1844), 11 Clark and E., 85, 8 Jur., 793.

Exception Uf. The court properly stopped counsel when commenting upon matter of which there was no evidence. The courts are liberal to counsel in argument, and generally permit much latitude to them when addressing the jury, but they must be careful not to go beyond their privilege and introduce irrele*339vant matters calculated to divert the minds of the jurors from the true issue and to prejudice the other side. Hopkins v. Hopkins, 132 N. C., 25.

The remaining exceptions relate to the refusal of the court to instruct the jury as requested, and to the charge itself. There was no evidence of self-defense or manslaughter. The court charged the jury fully and correctly as to murder in the first degree. The instruction, that if the prisoner intentionally killed the deceased with a deadly weapon, towit, a gun, the law’ implied malice and the prisoner would be guilty of murder in the second degree, is well sustained by the cases. In all indictments for homicide, when the intentional killing is established or admitted, the law presumes malice from the use of a deadly weapon, and the defendant is guilty of murder (now in the second degree) unless he can satisfy the jury of the truth of facts which justify or excuse his act, or mitigate it to manslaughter. The burden is on the defendant to establish such facts to the satisfaction of the jury, unless they arise out of the evidence against him. This rule has been uniformly adhered to by this Court in indictments for homicide. S. v. Quick, 150 N. C., 820. This principle has been reiterated by us in more recent cases. S. v. Worley, 141 N. C., 764; S. v. Yates, 155 N. C., 450; S. v. Rowe, ibid., 436; S. v. Simonds, 154 N. C., 197; S. v. Cox, 153 N. C., 638; S. v. Fowler, 151 N. C., 731, and formerly in S. v. Clark, 134 N. C., 698; S. v. Brittain, 89 N. C., 481. An intentional killing with a deadly weapon being shown, the defendant, therefore, was guilty of murder in the second degree, unless he satisfied the jury of matters mitigating or excusing the homicide. The judge also charged correctly as to murder in the first degree, and the instruction, that if the killing was done in the perpetration of or in the attempt to perpetrate a robbery, it would be deemed a murder in the first degree, was directly within the terms of the statute, 3631. The jury, nevertheless, could convict of murder in the second degree (Revisal, sec. 3271), or acquit, and they were so charged by the court, but they should, of course, be governed by the testimony, and find truly according to the fact. S. v. Matthews, 142 N. C., 621. The judge seems to have given substantially every prayer requested by the prisoner, or at least *340those which were correct in law and to which he was entitled. Some so given were more favorable than the prisoner had any right to expect. The charge, in regard to the nature of circumstantial evidence and how the jury should consider it, was certainly free from any error of which the prisoner can complain, and so was the charge upon the doctrine of reasonable doubt. S. v. Adams, 138 N. C., 688. There is no particular formula prescribed by the law for defining or stating what is meant by a reasonable doubt. S. v. Whitson, 111 N. C., 695; S. v. Adams, supra.

Whether the request for instructions, submitted after the jury had retired to their room, should have been given was within the discretion of the court. S. v. Hairston, 121 N. C., 579; Shober v. Wheeler, 113 N. C., 370. There not only was no abuse of the discretion, but the charge was so clear and comprehensive that the jury could not have misunderstood it, and the additional instruction was not necessary for any further consideration of the case.

The judge charged the jury that they could give any one of three verdicts — first degree murder, second degree murder, and acquittal — and granted requests of the prisoner for instructions which were exceedingly favorable to him. The evidence convinced the jury of his guilt, and it was amply sufficient for that purpose. The facts pointed to him alone as the perpetrator of the crime, and his own confession, of course, greatly increased the force of the evidence against him. It was made under such circumstances to his fellow-prisoner in jail as to carry conviction of its truth, especially when it is considered in the light of the other evidence.

After a careful review of the record, no error is disclosed.

No error.