#### STATE v. CHARLES E. TRULL.

(Filed 5 May, 1915.)

1. Homicide — Circumstantial Evidence — Motive—Bobbery—Identification of Money.

Where circumstantial evidence is relied on by the State for conviction of a homicide, tending to show robbery of money as a motive for the crime, i.t is not required that the State prove that the identical amount or the identical money afterwards found on the prisoner was taken by him from the deceased, for evidence to establish motive for murder is not of the character required upon a charge of robbery alone.

2. Homicide — Circumstantial Evidence — Chain of Evidence — Instructions.

Where there are several phases of circumstantial evidence on the trial for a homicide not so related or interwoven that the jury may not find their verdict on one or several or all of them, it is not error for the judge to refuse to give a requested instruction that each circumstance testified to depended upon the truth of the preceding one, and “the chain is no stronger than its weakest link, and when broken becomes a rope of sand.”

8. Homicide — Circumstantial Evidence — Degree of Proof — Instructions.

Upon a trial for homicide wherein the State relies upon circumstantial evidence, it is not error for the trial judge to disregard the language of a special prayer for instruction offered by the defendant, “that the circumstances so relied on must be so clear and convincing as to point unerringly to the guilt of the defendant, and must exclude every possibility of his innocence,” where, using his own language, the judge has substantially complied therewith.

4. Jurors — Homicide—Segregation—Appeal and Error — Court’s Discretion.

It is not a statutory requirement that jurors should be kept together during the trial of a case, but a practice of the court to prevent their being tampered with, which should be given a reasonable construction; and where it appears on appeal from the refusal of the trial judge to *364grant a new trial on that ground, and from the findings of the judge, that a jury in a homicide case had been permitted during the trial to sleep in adjoining rooms at a hotel, segregated from the other guests of the hotel, but they communicated with no one except to ask the bell-boy for ice water; and the defendant was in no wise prejudiced, it is held that the action of the judge was within his reasonable discretion, and not reviewable.

5. Homicide — Mental Incapacity of Defendant — Drugs—Appeal and Error-Findings.

The refusal of a new trial by the judge on the ground that the defendant, charged with homicide, was under the influence of an opiate at the' trial, and'unable, for mental incapacity, to properly conduct his defense, is not held erroneous on this appeal, it appearing that as soon as the judge observed that the defendant did not seem to be right he adjourned court, had the defendant examined by the county physician, who reported the defendant in good condition the next morning, when the trial was proceeded with; and if any mental incapacity had theretofore existed, it had not been called to the attention of the court, and that the defendant throughout the trial was in full possession of his faculties.

6. Jfew Trial — Court’s Discretion — Appeal and Error — Findings.

The findings of the trial judge upon a motion before him for a new trial upon newly discovered evidence, and his refusal of the motion, are not reviewable on appeal.

7. Appeal and Error — Docketing Appeals — Agreements—Procedure.

The statute and rules of the Court requiring docketing appeals in the Supreme Court before the call of the districts to which they belong, etc., under penalty of dismissal (Rules 5 and 7, Revisal, sec. 591), may not be varied, either in criminal or civil cases, under agreement with the solicitor or opposing counsel to extend time to the appellant láter than that, allowed; and when these requirements for any reason cannot be complied with, the appellant must docket the record proper in the Supreme Court, and apply to the Court for a certiorari.

The prisoner was convicted before Shew, J., at June Term, 1914, of MeckleNBURG, of murder, in tbe first degree, of Sidney Swain, wbo was killed by a blow on tbe bead witb an iron pipe, after midnight on Saturday, 16 April, 1914, while going home from bis store.

It was in evidence that tbe deceased, before leaving bis store about 12 :20 at night, took from tbe money drawer all tbe cash therein, about $225 having been taken in that day; besides there was in tbe drawer tbe cash taken in for three or four days previously, and that when bis body was found there was only $3 in bis hip pocket; that on Tuesday before tbe homicide tbe prisoner left bis boarding-house because be could not pay bis board bill, and was in tbe habit of borrowing small sums of money and pawning bis effects; that on that Saturday afternoon be went to bis boarding-house, and, being asked to pay bis bill, said that be would pay on Monday morning; that at 10:30 that night be went to a barber shop and asked to be shaved on credit; that at 3:30 that afternoon be borrowed 15 cents to buy a pair of shoes; that about 12:30 that night tbe *365prisoner asked tbe witness Barton to exchange suits with him, and Barton let him have his coat, and about 2 o’clock that night he was awakened by the prisoner, who took off his pants and put on another pair, and that at the prisoner’s invitation the witness went with him to several places “to have a big time”; that on objection by Barton that he had no money, the prisoner then replied that he had plenty of money and would pay all expenses; they visited several places,- and the prisoner spent considerable money, besides giving the witness $10. On his return the prisoner seemed much excited and nervous, and during the night repeatedly insisted on the witness leaving town with him. The witness and the prisoner were arrested early the next morning, and just before the arrest the prisoner said to the witness that if anything got out and the witness said anything about it, he (the prisoner) would shoot him.

It appears from the testimony of the officers that when the witness Barton and the prisoner were arrested $10.55 was taken from Barton and $407.50 from the prisoner; that the prisoner said when arrested that he did not know how much money he had, and the prisoner’s pants, which Barton testified he had taken off and put in a drawer, on his return, had fresh blood on them; the shoes taken from the prisoner were the same which he had bought with the 75 cents borrowed from Barton and fitted the tracks found near the body, the tracks showing the five bars which were on the shoes; one of the shoes had blood spots on it. There were other circumstances in evidence, several witnesses testifying that they saw the prisoner about 12 o’clock that night, or shortly thereafter, in the vicinity of the place where the deceased was murdered, some of them noticing the change in his clothing, and that between 11 and 12 o’clock the prisoner had tried to borrow a pistol. Barton further testified that when they were arrested and taken to the police station the prisoner beckoned him into'the toilet-room and suggested how he should obtain testimony as to how the prisoner had obtained money. The driver of the patrol wagon testified that the prisoner beckoned to Barton and they went together into the toilet-room. The chief of police testified that Barton in the prisoner’s presence gave substantially the same recital of the circumstances which he testified to on the stand. The prisoner in his own behalf gave his account of his movements that evening, which it is not necessary to recite, and accounted for his money by saying that he had been saving it up for some time to go to Hot Springs, Arkansas, for treatment of a disease, and that he had put his money around in different places from time to time; that he hid some money in a mattress at his boarding-house; that he pulled a plank off a store and had concealed some money there, and that he had hidden money between Riles’ store and the alley, and that that evening he had gone around and collected up the money thus hidden. It is unnecessary to state the evidence more in detail.

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

D. B. Paul and Newell & Newell for prisoner.

Clark, C. J.

There are no exceptions to the evidence. Exceptions 1, 2, and 3 are to the refusal of the court to give three special instructions requested as to circumstantial evidence.

The first request was to charge that “Where the State relies wholly upon circumstantial evidence for conviction it is incumbent upon the State to establish each circumstance beyond a reasonable doubt. In this case the State alleges that the deceased was murdered by the defendant, the motive being robbery; and it alleges that the money taken from the defendant’s person and also off the witness Barton was the identical money that was taken from the deceased at the time of his murder. Therefore, the State must satisfy you beyond a reasonable doubt, first, that the deceased had at least $417.50 on his person at the time of the murder, and that the money taken from the defendant and also from the witness Barton is the identical money that the deceased had. If the State has not so satisfied you, you will return a verdict of not guilty.”

The court could not give this charge as asked. This is not an indictment for robbery, and if it were, it would not be necessary to prove the identical amount charged. The court in the charge correctly instructed as to circumstantial evidence all that the prisoner could have asked, as follows: “Each essential and material fact relied upon by the State must be estabished beyond a reasonable doubt.” The court also charged as to circumstantial evidence: “When such evidence is relied upon to convict, it should be clear, convincing, and conclusive in all its combinations, and should exclude all reasonable doubt as to guilt.” And further: “In passing upon such evidence it is the duty of the jury to consider all the circumstances and determine whether they have been established beyond a reasonable doubt.” This was a sufficient compliance with the prayer. S. v. Brackville, 106 N. C., 701.

The second exception is to the refusal of the court to charge that “Where circumstantial evidence connected the prisoner with the crime, each circumstance depends upon the truth of the preceding one, and the chain is no stronger than its weakest link, and, when once broken, becomes a rope of sand.” The prisoner further asked the court to charge, as an application of the principle, that unless the State satisfied the jury that the prisoner did not have the money hid out, as he said, and that the money which he had when arrested was the identical money which the deceased had on his person when he was murdered, and that the prisoner and no one else murdered him and took his money, the jury should return a verdict of not guilty. But this was not a case calling for the application *367of tbe principle stated. In S. v. Neville, 157 N. C., 596, Mr. Justice Walher said: “There was no chain of circumstances in this case which required the court to tell the jury that each circumstance which constituted a link must be established to their full satisfaction. A chain is no stronger than its weakest link, it is true; but there is no series of facts in this case necessary to be considered by the jury in order to convict the defendant.”

In S. v. Fleming, 130 N. C., 689, the refusal of the court to charge, “Every link in the chain of evidence must be proved beyond a reasonable -doubt,” was sustained when in lieu thereof the court instructed the jury, as in this case, that the State must establish every circumstantial fact upon which it relies, beyond a reasonable doubt. In S. v. Shines, 125 N. C., 730, the Court said: “There are cases of circumstantial evidence in which each circumstance depends upon the truth of the preceding one, in which case the evidence may be likened to a chain, which is no stronger than its weakest link. But usually that simile is inapplicable. Ordinarily, the circumstances accumulate, each one by itself being of no great strength, but like the bundle of twigs in the fable, or the several strands twisted into a rope or cable, becoming, when united, of great strength,” citing several cases. Even when a charge giving the simile of a chain may be properly used, it refers only to the necessary links in the chain of evidence. S. v. Carson, 115 N. C., 743; S. v. Crane, 110 N. C., 530.

The third exception is to the refusal of the court to charge in the identical words of the prayer: “Where circumstantial evidence is wholly relied upon by the State for conviction, as in this case, the circumstances so relied upon must be so clear and convincing as to point unerringly to the guilt of the defendant, and must exclude every possibility of his innocence.” The court in its charge substantially complied with this request, saying: “Do these circumstances exclude from your conclusion everything except that of guilt?” And, “Such facts (essential or material facts) so established must not only be consistent with the defendant’s guilt, but those facts must be inconsistent with the defendant’s innocence and exclude every reasonable hypothesis of his innocence.” The whole charge is carefully expressed and fully conveys the idea set out in the prisoner’s prayer, often repeated.

Exception 4 was for the refusal of the court to grant a new trial on account of alleged improper conduct of the jurors. The matters alleged were that the jurors were permitted to sleep in separate rooms and to read newspapers containing accounts of the trial, and that the hotel bellboy was admitted to the rooms while the jurors were occupying them. The court found as facts that “The jurors were properly kept together and in the custody of an officer during the day, but that at night they occupied five adjoining rooms on the same floor. The jurors were allowed *368to occupy five rooms on account of oppressive beat. No persons bad access to sucb rooms except tbe maid at tbe hotel and tbe bell-boy, and tbe jurors communicated with no one except to order water from tbe bellboy. No juror read any newspaper during tbe trial.” Tbe court further found that “while tbe conduct of tbe officer in keeping tbe jury in five different rooms was improper, yet no barm came to tbe prisoner on this account.”

Tbe requirement that tbe jury should be held together is not statutory, but tbe practice of tbe courts in order to prevent tbe jury being tampered with. It must receive a reasonable construction. There must be necessarily some separation, for tbe jurors do not all sleep in one bed, and in tbe dining-room, where there are small tables, they cannot sit at tbe same table; but it is sufficient if they are segregated from mingling with tbe crowd, and there are other occasions which necessarily require tbe temporary retirement of a juror from tbe body of bis fellows. On this occasion, owing to tbe beat and possibly from tbe difficulty of procuring a sufficiently large room, tbe jurors occupied five adjoining rooms, and from tbe testimony those five rooms were on tbe same floor and segregated from tbe rest of the rooms on that floor by a bathroom and toilet, “setting off this lot of rooms from any of tbe other rooms in tbe building,” and all five rooms opened on tbe same ball. Tbe judge finds as a fact that tbe jurors did nothing improper during tbe trial and communicated with no one except to order ice water from tbe bell-boy. There was no impropriety in this, any more than in speaking to tbe waiter at tbe table to bring water or dishes.

Even if tbe judge were correct in finding that it was improper for tbe jurors, under tbe circumstances, to occupy five adjoining rooms opening upon tbe same ball, still be finds that there was no communication with outsiders (except with tbe bell-boy, as stated), and that no barm accrued to tbe prisoner.

It has been uniformly held that when tbe circumstances are sucb as merely to put suspicion on a verdict (which was not tbe case here) by showing, not that there was any undue influence, but merely opportunity, tbe granting of a new trial rests in tbe discretion of tbe trial judge. This was fully discussed and decided in S. v. Tilghman, 33 N. C., 553, and very numerous cases in tbe citations thereto in tbe Anno. Ed. Among many in point are S. v. Brittain, 89 N. C., 504, and S. v. Crane, 110 N. C., 537, and cases there cited, and S. v. Morris, 84 N. C., 765, and citations in tbe Anno. Ed. At this term tbe Court has reiterated, in Lewis v. Fountain, 168 N. C., 277, and in Cook v. Highland Hospital, 168 N. C., 250, that where tbe circumstances are sucb as merely to put suspicion on tbe verdict because there was opportunity and a chance for misconduct, this is not sufficient to set aside tbe verdict, unless there was *369in fact misconduct. When there is merely matter of suspicion it is purely in the discretion of tbe presiding judge, citing Moore v. Edmiston, 70 N. C., 481; S. v. Brittain, supra; Baker v. Brown, 151 N. C., 17, and S. v. Tilghman, supra. In Baker v. Brown this proposition is fully discussed and sustained by Walker, J. In S. v. Harper, 101 N. C., 761, where eleven of the jurors went to dinner under charge of an officer, and the other remained in his room under the charge of a sworn deputy, but the court found there was no effect on the verdict caused thereby, this Court sustained the judge below in refusing to set aside the verdict. That case was a conviction of a felony, though not capital.

Under the ancient common law, after the jury were charged they were kept together, both in civil and criminal cases, “as if they were prisoners, until they are discharged.” Bannister, J., in Bishop of N. v. the Earl of Kent, 14 Henry VII., ch. 29, quoted by Thompson and Merriam on Juries, sec. 310. In those times trials of causes lasted but a single day, and the power of the court to adjourn from day to day to give jurors opportunity for rest and refreshment was doubted or denied. Indeed, the jurors were denied “meat and drink” until they had agreed. In modem times there has been a great amelioration, owing to the greater intelligence of the jurors, the greater respect for their intelligence, and the changed conditions of modern times. Indeed, in civil cases, the separation of a jury after being charged, though without leave of the court, before they have agreed upon their verdict, is not now, as a mere matter of law, ground for a new trial. Thompson and Merriam on Juries, sec. 315. In some of the States this has been extended to prosecutions for felony and even in capital cases. Thompson and Merriam, sec. 318. In this State the jury in felony cases, after the charge, are required to be kept together, though there are many instances in which the jurors have been and must be permitted to separate during the progress even of a capital trial, under the charge of sworn officers. One or more of the jury in a capital case have been permitted, in some States, to visit their homes under the charge of a sworn officer. See Thompson and Merriam, sec. 321, and cases there cited. We would not be understood as approving or encouraging such practice. We merely hold, in this case, that on the facts found there was no legal separation, and that even if there was, the judge having found that there was no communication with outsiders and that no harm accrued to the prisoner, he properly refused to grant a new trial. It will be noted that there is a distinction between the discharge of a jury before verdict and a temporary separation, for purposes of necessity, or a quasi separation as in this case, where the jury is really still kept separate from outsiders and the judge finds that no prejudice accrued to the prisoner.

*370Tbe prisoner also excepted to tbe refusal of tbe court to grant a new trial on tbe allegation that tbe prisoner was under, tbe influence of an opiate during a part of tbe trial. Tbe court finds as facts that while tbe court was charging tbe jury tbe defendant was asleep a part of tbe time, but that tbe court did not know of tbe fact, and that tbe counsel of tbe prisoner did and failed to call tbe attention of tbe court thereto; that late one afternoon during tbe trial tbe court discovered that tbe prisoner did not seem to be right, and at once adjourned court for tbe afternoon and bad tbe prisoner examined by tbe county physician, who tbe next morning reported him in good condition; that then tbe trial proceeded, and tbe judge, with tbe aid of tbe county physician, observed tbe condition of tbe defendant thereafter during tbe trial, and that be was in full possession of all bis faculties and entirely capable of conducting bis defense; that if be was under tbe influence of an opiate at any time it was smuggled to him without tbe knowledge of tbe officers and was taken by him voluntarily. Though tbe court finds that tbe prisoner appeared drowsy at times, it also found that he was throughout tbe trial in full possession of all bis faculties and capable of conducting bis defense. Tbe court could not have taken more precautions than tbe careful judge appears to have taken in behalf of tbe prisoner in this case.

Tbe refusal of tbe court to grant a new trial for newly discovered testimony rested in bis discretion, and is not reviewable. S. v. Jimmerson, 118 N. C., 1173; S. v. DeGraff, 113 N. C., 690; S. v. Morris, 109 N. C., 820. Tbe findings of fact by tbe court on such motion are not reviewable. S. v. DeGraff, 113 N. C., 690; S. v. Morgan, 120 N. C., 563; S. v. Lance, 109 N. C., 789; S. v. Dunn, 95 N. C., 697.

This Court has uniformly held that “a petition to rehear, or to grant a new trial, for newly discovered testimony cannot be entertained in this Court in criminal actions.” S. v. Ice Co., 166 N. C., 404, citing numerous and uniform decisions. After careful consideration of all tbe assignments of error and scrutiny of tbe entire record, we find no error.

We note that this trial was bad in June, 1914. Under tbe statute and rules of tbe Court this appeal was required to be docketed at tbe Fall Term of this Court before tbe call of tbe docket of tbe district to which it belongs, under penalty of dismissal. Rules 5 and 7, 140 N. C., 540, 544; Revisal, 591; Pittman v. Kimberly, 92 N. C., 562, and numerous cases thereto cited in tbe Anno. Ed., and Burrell v. Hughes, 120 N. C., 277, citing numerous cases and with numerous annotations in tbe Anno. Ed. It appears in tbe record that tbe solicitor agreed with tbe prisoner’s counsel that tbe case might be postponed and docketed at this term. This was an irregularity, and was beyond bis authority. Tbe statute must be complied with and tbe. cause docketed at tbe next term here after tbe trial below. If in any case there is any reason why this cannot be done, tbe *371appellant must docket tbe record proper and apply for a certiorari, which this Court may allow, unless it dismisses the appeal, and may then set the ease for trial at a later day at that term or continue it, as it finds proper. It is not permitted for counsel in a civil case, nor to the solicitor in a State case, to assume the functions of this Court and allow a cause to be docketed at a later term than that to which the appeal is required to be brought by the statute and the rules of this Court.

No error.