#### STATE v. JIM McCLURE.

(Filed 22 April, 1914.)

1. Homicide — Deadly Weapon — Matters in Mitigation — Trials— Charge — State’s Evidence — Appeal and Error — Harmless Error.

Where the killing of a human being with a deadly weapon has been shown, and upon the trial of the accused for the homicide the judge has correctly charged that the burden was upon the prisoner to show matters in mitigation to reduce the degree of the crime from murder in the second degree, but the State must show premeditation and deliberation beyond a reasonable doubt for conviction in the first degree; arid, also, that the prisoner could rely upon the State’s evidence, as well as his own, to show such matters in mitigation, it is not held for error that in his charge the court further stated they should find the less offense, “if the defendant has shown the matters in mitigation by his evidence,” for taking the charge as a whole it does not restrict such evidence, in the consideration of the jury, to that offered by the prisoner alone.

*3222. Homicide — Murder in First Degree — Premeditation—“Fixed Purpose” — T rials — Instructions.

Upon a trial for homicide, the burden of proof is upon the State to show premeditation and deliberation beyond a reasonable doubt to convict of murder in the first degree, and though a “fixed purpose” to kill may be formed under circumstances of mitigation or excuse, and may not alone be sufficient, yet when the charge of the judge has correctly stated the law in regard to premeditation and deliberation, it will not be held for reversible error that he also told the jury that they must find that the prisoner committed the act with a “fixed purpose,” for the charge will be construed as a whole.

3. Criminal Law — Assault on Officer — Arrest Without Warrant.

It is not required that a lawful officer should have .a warrant in making an arrest for an assault upon him, for such is not personal to the officer, but an offense against the public; and under the circumstances of this case it is held that he had not lost the right to arrest the prisoner because the latter had walked away some 50 or 75 yards after making the assault.

4. Same — Homicide — Sheriffs — Deadly Weapon — Murder in First Degree — Premeditation—Evidence—T rials.

The prisoner was engaged with others in committing a misdemeanor, and, anticipating arrest for the offense, thereafter procured a shotgun with amniunition, and while going upon a highway to his home was met by a deputy sheriff and others whom the sheriff had deputized for the purpose of making the arrest. The officer had no warrant for the arrest of prisoner for the misdemeanor, and upon the latter’s declaration that no one should arrest him therefor, permitted him to walk about 50 or 75 yards down the road, and then proposed to arrest him, for assault made on him with the gun. The sheriff then aimed his pistol at the prisoner, several times called on him to halt, informed him of the offense for which he intended to arrest him, whereupon the prisoner snapped his gun at him, the sheriff shot at the prisoner, the prisoner shot the sheriff and inflicted the deadly wound. Held, (1) While an officer is not ordinarily permitted to use a firearm in making an arrest for a misdemeanor, the officer was justified in doing so under the circumstances, the prisoner’s misdemeanor in making the assault upon the officer being in the officer’s presence, and the use of the pistol found by the jury not to be force excessive of that required; (2) The evidence of premeditation and deliberation was sufficient to sustain a conviction of murder in the first degree; (3) The charge of the court was proper.

*3235. Homicide — Trials — Murder in First Degree — Instructions—Appeal and Error — Harmless Error.

Tlie trial judge having explained to the jury the principles of law applicable upon the evidence in a trial for homicide, a portion of the charge, that if the prisoner killed the deceased with premeditation and deliberation, as theretofore explained to them, and this is shown beyond a reasonable doubt, the prisoner would be guilty of murder in the first degree, is not held for error.

Appeal by defendant from Shaw, J., at September Term, 1913, of Guilford.

This is an indictment for murder. Tbe prisoner, a negro boy, was found g'uilty of tbe murder in tbe first degree of E. L. Bain, a deputy sheriff, and was sentenced to death, and appealed.

Tbe record shows evidence tending to establish tbe following facts:

Pomona Station is about 3 miles west of Greensboro, and Pomona Cotton Mill is about one-half mile west of Pomona Station, both being on railroad and public road. Terra Cotta is about a quarter of a mile northwest of Pomona Mill. A street-car line runs out west from Greensboro to a little car shed on a cross-road running north from Pomona Mill. This shed is located at end of car line in open field, several hundred yards north of the Pomona Mill, and about one-half mile east of Terra Cotta. From it the cross-road runs south across the public road and railroad to Pomona Mill, and a path runs west down the bottom to Terra Cotta.

• On Saturday afternoon, 2 August, 1913, a negro boy, Ernest Madkins, with a bunch of bananas, was' going out from Greensboro to Terra Cotta on a street car, on which were several of the Pomona Mill boys, State’s witnesses. In course of trip Mad-kins dropped a banana, and one of the mill boys grabbed' it. Madkins said: “Mister, please give me my banana.” The mill boy refused, and said he was going to keep it. Later on the trip the negro, again asked for the banana, with the same result. On getting off the ear at end of line, Madkins saw prisoner standing there with a cane and told him of the banana incident. Thereupon the negroes began to demand the banana, and still the boys refused to give it up. Then the white boys and negroes began *324throwing some rocks, and during this the deceased came running-down the hill across the field from Pomona Mill, calling “Halt!” The negroes started to run down the bottom toward Terra Cotta. The deceased then shot. Eunning on, he caught Madkins, but prisoner ran on off. Deceased and the mill boys, who had joined with him, took Madkins on back to Company’s Store, across railroad at mill. Nothing was known of prisoner until half an hour or more later, when he and another negro were seen passing down the public road from Terra Cotta toward Pomona. In the meantime the prisoner had procured a gun and had bought some shells, saying he was going to shoot birds. When seen, they had passed the cross-road that turns off to the mill and store where deceased and mill boys were. The negroes, prisoner having a shotgun, went on down the road several hundred yards, met some other negroes in the road, talked a while, and then turned and started back up the road toward Terra Cotta. Meanwhile deceased had deputized men, giving Wright a pistol and keeping his own, and started out to meet prisoner and “arrest him.” The men, led by deceased and Wright, and without a warrant, went out cross-road north across railroad to public road, and turning down east, went down it till they met the prisoner coming up road and going towards his home at Terra Cotta. Deceased walked up within 3 or 4 feet of the prisoner, and asked him if he was at car line in the riot. He denied it, refused to be arrested, asked who the officer was, drew his gun on deceased, stepped back from crowd, threatening to shoot, and refusing to' be arrested. He then took down his gun and walked straight up the road toward home without looking-back. Deceased and those with him stood still in the road till prisoner had gone from 30 to 40 yards away, and then deceased suggested arresting him for drawing his gun. The deceased and his party then advanced behind prisoner for some distance, gaining on him. Deceased covered him with his pistol and called “Halt!” from three to six times, all the time walking on behind prisoner, who did not even look around. Just as prisoner was nearly past the cross-road leading into mill, and was going on toward home and away from the mill and the crowd, deceased said: “I have told you my last time.” Deceased had prisoner *325covered when, be said tbis. Prisoner then looked back for first time; tben, as be raised bis gun, be snapped it; tbe deceased sbot at prisoner; prisoner sbot once, killing deceased; turned and ran as bard as be could, with crowd chasing, firing ten to twenty-five or thirty shots after him.

Holly A. McNairy, introduced by tbe State, testified as follows : I am a merchant at Terra Cotta and know tbe prisoner. I remember tbe date tbe deceased was killed, and I saw tbe prisoner on that afternoon before tbe deceased was killed, probably between one-balf and three-quarters of an hour before. It was about 6 o’clock, something near 6 o’clock, when be came in tbe store and wanted 10 cents worth of shells. I sold them to him; be looked like be bad been running; was hot. I asked him if be was going to shoot anybody, and be said no, be-was going to shoot some birds. He bad a gun with him, a double-barrel gun, I think.' I didn’t see him after be went out of tbe store.”

N. J. "Wright testified for tbe State as follows: “I live at Pomona Mills and remember tbe occasion on which tbe deceased was sbot. I was with him at tbe time, but was not on tbe street car that afternoon. I was on my way to tbe mill and walked up to where tbe deceased and several others were standing at tbe Company Store.. Tbe deceased bad a negro under arrest and asked me to go with him up tbe road where those negroes were. I told him I would go, so I walked up tbe road to meet them. Tbe prisoner is tbe only one I know. When tbe prisoner bad met tbe other darkies down tbe road, they stopped and talked a little bit, and tbe prisoner and#two others came down tbe road. Tbe prisoner was carrying bis gun. When we met tbe negroes, tbe deceased said: Were you down at tbe depot, at tbe car shed in that riot?’ Tbe prisoner said: No, by God, I wasn’t.’ He tben asked what we were going to do about it. After that be stepped back and cocked bis gun and asked which one of us was tbe God damned officer that was shooting at tbe car shed. The deceased tben said: H am tbe officer; here is my badge.’ Tbe prisoner tben drew bis gun and said: ‘You are tbe damned man I want.’ He didn’t put bis gun to bis shoulder. It was pointed toward tbe deceased. Tbe deceased said be didn’t want any trouble at all, but just wanted to get tbe straight of it; wanted *326to quiet it down. Tbe prisoner then asked what we were going to do about it, turned around, let his gun down, didn’t let the hammers down, and started on up the road. Repeated several times that there was no God damned son of a bitch in the county who could arrest him; that he would kill any officer that undertook it. He went on up the road, one darkey with him, something like 50 or 75 yards. As he was going up the road, the deceased said to me: 'Let’s arrest that negro for drawing that gun.’ The deceased then told me to come with him, and we walked on up the road, gaining on the prisoner. The deceased hallooed 'Halt!’ three or four times. Then the deceased said: 'I have .told you my last time to halt.’ The prisoner turned around then with his gun and said: 'I can shoot as damned hard as you can,’ and snapped his gun at the deceased. The deceased fired at him, and then the prisoner shot and killed the deceased. The prisoner then turned and started to run.”

There was other evidence to the same effect, introduced by the State.

The prisoner introduced no evidence.

The only exceptions relied on are to the charge of his Honor .and to the refusal to give certain special instructions.

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

S. Clay Williams for defendant.

AlleN, J.

We have examined the charge of his Honor with great care, and find no error ¿n the charge given, or in the refusal of the special instructions, nor do we concur in the position that the evidence and contentions of the State were unduly emphasized.

The criticism of the charge that ''The burden would be upon the defendant to show facts and circumstances in mitigation,” and, “If the defendant, as heretofore explained by the court, has offered evidence which mitigates the offense,” is supported by S. v. Castle, 133 N. C., 769, upon the ground that such a charge excludes the idea that the prisoner may rely on evidence offered by the State in mitigation; but the court did not let the matter rest here, and, on the contrary, distinctly charged the *327jury that in mitigating or excusing tbe offense tbe prisoner “Eas a right to rely upon evidence offered by tbe State.” His Honor charged tbe jury that they must be satisfied beyond a reasonable doubt that tbe killing was with premeditation and deliberation before they could convict of murder in tbe first degree.

He then further charged that, “Deliberation means to think about, to revolve over in one’s mind; and if a person thinks about tbe performance of an -act and determines in bis mind to do that act, be bad deliberated upon tbe act, gentlemen. Premeditation means to think beforehand, think over a matter beforehand; and where a person forms a purpose to kill another, and weighs this purpose in his mind long enough to form a fixed design to kill at a subsequent time, no matter how soon or how late, and pursuant to said fixed design kills said person, this would be a killing with premeditation and deliberation, and would be murder in the first degree. And the court charges you if you should find beyond a reasonable doubt, gentlemen, that prior to the time he killed the deceased he formed the fixed purpose in his mind to kill him, and that pursuant to that purpose he did kill the deceased because of the purpose in his mind, and not because of any legal provocation that was given by the deceased, then the court charges you that the prisoner would be guilty of murder in the first degree, and it would be your duty to so find.”

The prisoner excepts to the latter part of the charge, contending that “fixed design” is not the equivalent of premeditation and deliberation, and that the prisoner could be convicted, under the instruction, of murder in the first degree, without premeditation and deliberation.

His Honor did not charge that the prisoner could be convicted of murder in the first degree because of the existence of a fixed design to kill, although there is authority justifying the charge (S. v. Dowden, 118 N. C., 1145; S. v. Barrett, 142 N. C., 565; S. v. Jones, 145 N. C., 466); but he was careful to,tell the jury that they must find premeditation and deliberation; he explained accurately the meaning of these terms, and then said the killing must have been pursuant to the fixed purpose, and not on account of any legal provocation.

*328*Tbe charge, considered as a whole, excludes the idea that the prisoner could be convicted because of the fixed design, although formed under circumstances that would mitigate or excuse.

In the Bowden case the Court says: “The word ‘premeditate’ means to think beforehand — as where a man thinks about the commission of an act and concludes or determines in his mind to commit the act; he has thus premeditated the commission of the act. The law does not lay down any rule as to the time which must elapse between the moment when a person premeditates or comes to the determination in his own mind to kill another person, and the moment when he does the killing, as a test. It is not a question of time. It is merely a question of whether the accused formed in his own mind the determination to kill the deceased, and then at some subsequent period, either immediate or remote, does carry his previously formed determination into effect by killing the deceased.” And in the Barrett case: “The rule laid down in this State is, that where the prisoner weighs the purpose to kill long enough to form a fixed design, and then puts it into execution, it is murder in the first degree.”

In the section from Wharton on Homicide, p. 161, relied on by the prisoner, while it is said that the formed design is not the equivalent of premeditation and deliberation, since the design may have been formed under circumstances of justification or excuse, the author also says: “That the homicide was determined upon beforehand, and purposely committed after reflection, with malice, however, is the equivalent of the willfulness, deliberation, malice, and premeditation required by the statute,” which is in accord with the charge given.

The jurors were fully instructed as to the rights and duties of the prisoner, and of the deceased as an officer, at the time of the killing. They were told that the deceased had no right to arrest on account of the affray at the car shed, because that was a past transaction, and he had no warrant; that if he was attempting to arrest for that affray, the prisoner had the right “to use whatever reasonable force was necessary to prevent the arrest,” and if reasonably necessary for that purpose to present his gun, he had the right to do so, and he would not be guilty *329of an assault in so doing; that if not guilty of an assault, the deceased had no right to point a pistol at him, and that if the deceased was killed under these circumstances when necessary to prevent an arrest, the prisoner would be excused, and if not necessary, that his crime would be reduced to manslaughter.

He further charged the jury: “If you find under these circumstances as explained to you, that Mr. Bain had not attempted to arrest him there, and that the defendant drew his gun upon him, and that Mr. Bain was an acting officer, and that he declared his purpose then to arrest him for the assault upon him, then the court charges you that he had a right to arrest him, and had the right to do it even for an assault, and even though the assault may have been committed upon Mr. Bain;' that would be a breach of the peace, a crime, and though it may have personally affected Mr. Bain-, it affected the public at large as well, and he would have a right, for a breach of the peace of that kind, to arrest him. And if you further find from the evidence that he made this announcement in the presence of the defendant, near enough for him, the defendant, to hear, that he was going to arrest him for that (referring to the drawing of the gun), and then that he ordered him to halt, then the court charges you that it was the duty of the defendant to stop, not to go on. If he ordered him to halt again, it was still his duty to stop and not to go on, and if you further find from the evidence that he ordered him to halt a third or fourth time, and told him this was the last time he was going to order him to halt, and he didn’t have his pistol drawn on him at all — simply had it in his hand, or maybe not drawn out from his pocket — then the court, instructs you that if the prisoner turned and shot him under those circumstances, that he would be at least guilty of murder in the sécond degree.”

The last two'paragraphs are excepted to principally'upon the grounds—

(1) That the deceased had no right to arrest for an assault upon himself.

(2) That if he had the right to arrest, he had no right to use a pistol, because the offense was a misdemeanor.

*330(3) That if be bad tbe right to arrest, he could only do so immediately up.on tbe assault being committed, and not after be bad permitted tbe prisoner to go 50 or 75 yards.

Tbe assault upon tbe deceased was not an offense against tbe individual, but one against tbe public, and for this reason tbe authorities generally support tbe position that it is tbe right of a peace officer to arrest, without warrant, one who assaults him (3 Cyc., 880; Montgomery v. Sutton, 67 Iowa, 497; Leddy v. Crossman, 108 Mass., 237), and tbe officer did not lose tbe right in this ease because tbe prisoner bad walked off, according to tbe evidence of one witness, 30 or 40 feet, and to that of another, 50 or 75 yards.

Tbe second position presents greater difficulty, because it is generally held that an officer cannot kill to affect an arrest or to prevent tbe escape of one charged with a misdemeanor. S. v. Phillips, 67 L. R. A., 200, note, where tbe authorities are collected. It was well said in Thomas v. Kinkead, 29 A. S. R., 73, that as tbe lawmaking power itself could not inflict tbe death penalty as a punishment for a misdemeanor, “it would ill become tbe ‘majesty’ of tbe law to sacrifice a human life to avoid a failure of justice in tbe case of a petty offender who is often brought into court without arrest and dismissed with a nominal fine.”

It'must be noted, however, that tbe prisoner was armed with a gun, which be bad presented a few minutes before, and that be bad declared bis purpose to kill any one who tried to arrest him; and further, that tbe deceased did not shoot in tbe first instance. He bad tbe pistol presented, .it is true, but if be bad tbe right to arrest, this was not only necessary to enable him to effect tbe arrest, but also to prevent tbe use of tbe gun.

In S. v. Garrett, 60 N. C., 149, which was an indictment against an officer for killing one charged with- a misdemeanor, whom be was trying to arrest, tbe Court says: “His Honor ought to have instructed tbe jury that, as tbe deceased bad put himself in resistance to tbe officer and bis guard, they were not only authorized, but were bound, to use such a degree of force as was necessary in order to execute tbe warrants, and were entitled to a verdict of acquittal on tbe ground that tbe homicide was justifiable, if no unnecessary violence bad been used, unless from *331the fact that the prisoner had started to cross the fence the jury should be satisfied that he had abandoned his deadly purpose of resisting to the death the execution of the law, and was attempting to make his escape by moving off; in which event there was no longer any necessity for shooting; and the officer, or some portion of his men, should have run after him and captured him in that way.”

The case of S. v. Horner, 139 N. C., 607, is in many respects like the one before us, and S. v. Durham, 141 N. C., 744, is almost directly in point.

In the Durham case the prisoner was arrested upon a warrant charging a misdemeanor, and carried to the office of a justice. He slipped out and began running. He looked back and saw the officer pursuing him, about 20 yards distant, with a pistol in his hand, which was pointed at him. He then drew his pistol, but did not present it. The officer then shot at the prisoner, and the prisoner returned the fire. The officer shot a second time, grazing the aim of the prisoner, when he turned and shot and killed the officer. A conviction of murder in the second degree was sustained, there being no evidence of premeditation and deliberation, and the Court said: “The officer is not excused if he, with undue violence, menaces the. life of the defendant when he attempts to arrest a person for a misdemeanor. The officer may be convicted and punished. But his crime will not excuse or condone the crime of the defendant in making open resistance to the .process of the State. ¥e are aware that in some jurisdictions it is held otherwise, and that while an officer, in attempting to arrest for a misdemeanor, dangerously menaces the life of the accused, the latter may defend himself to the extent of taking the officer’s life, and the plea of self-defense is open to him. But in this State we have a statute (Laws 1889, ch. 51) which enacts that ‘any person who willfully and unlawfully resists, delays, or obstructs a public officer in discharging or attempting to discharge a duty of his office shall be guilty of*a misdemeanor.’ At the time he killed the deceased the defendant was engaged in an unlawful act, not only malum in se (being in armed resistance to the process of the State), but an act directly connected with, and which finally *332resulted in, the death of the officer; for it is plain 'that had the defendant himself not resisted the law, but submitted to arrest, there would have been no homicide by any one.”

¥e are, therefore, of opinion there is no error in the instructions complained of.

We do not agree with counsel for the prisoner that his Honor expressed an opinion upon the fact when he said, “And if he killed him with deliberation and premeditation, as heretofore explained to you by the court, and this is shown beyond a reasonable doubt from the evidence, he would be guilty of murder in the first degree.”

In view of the whole charge, the jury could not have understood the judge as saying that premeditation and deliberation had been shown, but that the State must show it beyond a reasonable doubt.

The evidence of premeditation and deliberation was sufficient to be submitted to the jury. S. v. McCormick, 116 N. C., 1033; S. v. Daniels, 164 N. C., 469.

There was evidence that the deceased had tried to arrest the prisoner for the affray at the car shed; that he fled and procured a gun and shells; that immediately before the killing he committed an assault upon the officer, cursed and threatened to kill him.

We have discussed the exceptions chiefly relied on and have considered all that appears in the record, and while there are views of the evidence offered by the State which would have justified a conviction of murder in the second degree or manslaughter, we have no power to revise the findings of the jury, and are constrained to affirm the judgment.

The deceased would not have been killed, nor would the prisoner be now under sentence of death, if the witness for the State had given up the banana which he had wrongfully taken from the boy Madkins, when politely requested to do so; nor if the deceased had not deputized persons to aid him in arresting the prisoner and followed him, when he had no, right to make the arrest for the first affray, having no warrant.

No error.