#### STATE v. ERNEST BYNUM.

(Filed 27 February, 1918.)

1. Homicide — Deliberation—Premeditation.

It is not required that deliberation and premeditation be of any perceptible time to constitute murder in the first degree.

2. Same — Evidence—Questions for Jury.

Where there is evidence sufficient to convict the prisoner of a homicide, with further evidence that the prisoner, in a wagon, followed the deceased, a woman, who was walking, stopped his wagon for an hour near the place, the homicide occurred, from which, during that time, female screams of terror were heard; several days thereafter the body of the deceased was found, her throat cut with a razor or knife, with wounds upon her face evidently made by stick or club, with blood on it; indication that a knife had been wiped on leaves or bushes, that the body had been dragged along the ground, and that the woman’s clothes were disarranged and so arranged as to indicate rape, etc.: Held, sufficient evidence of deliberation and premeditation to sustain a verdict of murder in the first degree, there being no evidence of a quarrel between the prisoner and the deceased, or that they were acquainted.

*7783. Homicide — Criminal Law — Prisoner—Voluntary Witness — Statutes—Circumstances.

While the failure of the prisoner charged with homicide to take the witness-stand voluntarily will not create a presumption against him, the fact that he did not testify, under the circumstances of this case, was a circumstance, though not evidence, which with the evidence introduced may have had some weight with the jury as to the nature of what occurred in bringing in a verdict of guilty of murder in the first degree.

Appeal by prisoner from Whedbee, J., at August Term, 1917, of N ORTHAMPTON.

The prisoner was convicted of murder in the fire degree. There is no exception to the evidence nor to the charge, except that the court permitted the jury to consider the question of murder in the first degree. The case on appeal states: “The prisoner excepted to the judge’s permitting the jury to consider murder in the first degree on the ground that there was no evidence, as he claimed, of murder in the first degree, therefore the judge’s charge is not sent up in full. The court in its charge, among other things, instructed the jury fully and correctly as to what in law constituted murder in the first degree, murder in the second degree, and manslaughter, and that under the evidence they could render one of four verdicts: murder in the first degree, murder in the second degree, manslaughter, or not guilty, as they found the facts to be, applying the law as stated by the court and fully and correctly placed the burden upon the State of proving beyond a reasonable doubt each fact necessary to constitute the prisoner’s guilt.”

The prisoner offered no evidence. The evidence for the State is that the body of Lala Lassiter was found on Thursday, 10 May, 1917, in the woods in Garris’ Field. Her throat was cut from ear to ear and she had been hit a hard blow on the-head, and her nose was broken in, and a club near-by had a knot with blood on it which corresponded with the break in the nose, and there was a cut on her finger. There was also evidence that a knife or razor had been wiped on the grass. When found, the body had evidently lain in the woods for two or three days, during which time there had been rain, which removed many evidences of the transaction. Her clothing was much disarranged, her dress being up to her knees, and also on her back. There was evidence that she did not know the prisoner, who is a negro boy.

On the Monday preceding the finding of the body, the deceased was seen going on foot from her home to Conway and returning, and the prisoner driving his wagon was just behind her. She was not seen again until her dead body was found. This wagon was stopped not far from where the murder occurred for about an hour, and while it was stopped a woman was heard screaming and hollering about the spot where the murder occurred. The team and wagon stood there about an hour with *779no one in attendance. There was evidence that the tracks were found in the ditch, and the shoes which were taken from the prisoner exactly fitted the tracks at the place where the body was found. C. J. Garris also testified that when he went to help arrest the prisoner, the prisoner saw him coming and ran. Thad Davis testified to having seen the defendant in possession of a knife which he claimed to be his own, and Garris testified that he found a lot of leaves which had wiped a knife blade and looked like the knife blade had been run through them. The doctor testified that the throat of the deceased had been cut from ear to ear, probably with a knife or razor, cutting the jugular vein.

The deceased was a married woman and was returning to her home along the road that ran through this field. On the Wednesday after the Monday the prisoner came to Sam Flythe and tried to borrow a shovel. The prisoner was seen on the other side of the fence coming from the ditch, back of which the body of the deceased was found, at the time that the team had stood idle in the road about an hour. Two witnesses testified to having heard a hollering in that field about that time. Mrs. Mumford testified that it was a screaming and hollering, and it was a woman’s voice in distress. Two witnesses testified that the tracks leading to the scene of the murder fitted the shoes of the prisoner exactly, both the left shoe and the right, “A mold would not have fitted better.” At places where the ground was hard there were no tracks, but leaves had been broken off. In one place the witnesses found buds pulled off, and it looked like lots of them had been wiped on the hands. When the prisoner was arrested in Courtland, Ya., the tracks made by him fitted the same shoes that fitted these tracks. He ran, but was caught high up in a tree. The sheriff said he made no threats and asked no questions, but when the prisoner got down he said: “You are after me for killing that woman,” and added that he did not do it. The sheriff testified that he asked the prisoner where he was when his team was standing in the road, and he replied that he went back to Pete Joyner’s, to which the sheriff said to him, “You did not do that, for they said you did not go there that morning.” Sheriff Joyner also testified: “Charles Garris pointed out the tracks to me. He fitted one shoe and I fitted the other. We found tracks that were staked off; they were in the field; these tracks extended across that plowed field. We fitted these shoes for 150 yards and they fitted the tracks exactly. The tracks we put these shoes in were distinct. There was absolutely no mistake about that. The tracks had gone deep enough to remain there. My recollection is that these tracks were coming from the woods in which we found the body.”

Mr. Bridgers testified that he was with Sheriff Joyner and Garris when they searched for the tracks. “We did not find any tracks until *780we got to the first opening. (The witness here explains the map, showing where the body was found.) We found leaves there that looked like they had been bruised or something drawn through them, and had what looked like blood on them. We examined the piece of wood that it is supposed she was hit with. We noticed something that looked like blood on the knot. We saw some bushes that were broken; some bruised down, and picked up many of the leaves, which compared with those that were broken from the bushes along where something seemed to have been dragged.”

J. P. Garris testified that he was with the party who went to arrest the prisoner before he left the State; when the prisoner saw them he whipped up his mule and went pretty fast, going through two gates; when his party jumped out of the automobile and started for the prisoner, the prisoner jumped off the wagon and went into the woods; that they had not let this man know that they were coming after him; that the tracks they saw in Southampton County, Va., when they caught the prisoner were the same as those in the field where this body was found. The husband of the deceased testified that when his wife did not return Monday he thought she had gone to her mother’s.

Attorney-General Manning and Assistant Attorney-General Sykes for the State.

J. A. Worrell for prisoner.

ClaeK, C. J.

Our statute of 1892, now Bev., 3361, provides: “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree.”

It has been repeatedly held by this Court that the deliberation and premeditation need not be of any perceptible length of time. S. v. Jones, 145 N. C., 466; S. v. Banks, 143 N. C., 652; S. v. Daniel, 139 N. C., 549.

“It is not essential in order to show prima facie premeditation on the part of the prisoner that there should be evidence of preconceived purpose to kill formed at a time anterior to the meeting when it was carried into execution. It is sufficient if the prisoner deliberately determined to kill before inflicting the mortal wound. If there were such purpose deliberately formed the interval, if only a moment, before its execution is immaterial.” S. v. McCormack, 116 N. C., 1033, where it is also said, approving Kerr on Homicide, sec. 72: “The question *781whether there has been deliberation is not ordinarily capable o£ actual proof, but must be determined by the jury from the circumstances. It has been said that an act is done with deliberation, however long or short a time intervenes after the intent is formed and' before it is executed, if the offender has an opportunity to recollect the offense.”

In S. v. Booker, 123 N. C., 713, there was evidence which, in the language of the Court, “tended to show that the prisoner went to the home of the deceased on the morning of the day she was killed and got some black pepper; that he went off, and came back in about an hour with a gun and without provocation shot the deceased in the back of the head, killing her instantly.” The Court in that case adopted the words of the Court in People v. Conray, 97 N. Y., 72: “We are of the opinion that the jury was justified in inferring from the facts and circumstances proved that the death of the deceased was the result of deliberation and premeditation.”

In S. v. Adams, 138 N. C., 697, the husband of the murdered woman on his return home found his wife dead in the cotton field near the house with her skull crushed. There was evidence in that ease, as in this, of the prisoner’s tracks leading to and from the dead body. The Court said: “Murder may be committed without any motive. It is the intention deliberately formed, after premeditation, so that it becomes a definite purpose to kill. And a consequent killing without legal provocation or excuse constitutes murder in the first degree. The existence of a motive may be evidence to show the degree of the offense, or to establish the identity of the defendant as the slayer, but motive is not an essential, nor is it indispensable to a conviction of the person charged with its commission. S. v. Wilcox, 132 N. C., 1143; S. v. Adams, 136 N. C., 620.”

In S. v. Banks, 143 N. C., 652, the Court reiterates the repeated decisions of this Court as follows: “No particular time is necessary to constitute premeditation and deliberation for the conviction of murder in the first degree under the statute, and if the purpose to kill has been deliberately formed, the interval which'elapses before its execution is immaterial.”

In this case, there is evidence that the deceased was walking along the road in front of the wagon driven by the prisoner; that he stopped his wagon, which stood idle for about an hour; that during that time a woman was heard screaming where the body was found, and at the end of that time he was seen returning from that direction; that tracks leading to and from that direction and also near the body were identified as fitting the prisoner’s shoes; that the victim’s throat was cut from ear-to ear, her head bruised up, her nose broken in and a knot on a club nearby had blood on it and fitted the indentation on her nose; *782that the prisoner was known to have a knife and. the grass showed that a knife had been wiped upon a bunch of it. There were indications that the body had been dragged through the bushes and that leaves and grass had been bent down; and that buds and leaves from the trees had been pulled off as if some one had wiped his hands; when a party went to arrest the prisoner, he whipped up his team and endeavored to escape, and finally jumped off his wagon and ran through the woods. Under extradition proceedings officers were sent who found him in Virginia. Seeing the party approaching the prisoner again fled and when overtaken was up a tall tree. When he came down before any charge was made, the prisoner said, “You have come to arrest me for killing that woman,” and denied it.

The evidence, is circumstantial. It was for the jury to say whether the prisoner committed the homicide. There was evidence from the above testimony, taken in connection with the disordered state of the dress of the victim, that the homicide might have been committed in an attempt to rape which would make it murder in the first degree. There was an absence of any altercation or quarrel which might point to a killing with malice and without deliberate intent to kill. The manner of the.killing, cutting the throat from ear to ear, the beating up of the head and the breaking in of the nose would indicate, or at least was evidence from which the jury could infer that the killing was not merely from malice (which would make it murder in the second degree), but was a deliberate intent to kill in order to conceal his crime or his intent to commit crime, against the person of the victim. These were matters for the jury. -

In Hill v. Commonwealth, 2 Grattan (Va.), 594, it is held: “Where a homicide is proven, the presumption is murder in the second degree. If the Commonwealth would elevate it to murder in the first degree, it must furnish evidence to justify such finding, and if the prisoner would reduce it to manslaughter, the burden of proof is on him. A man shall be taken to intend that which he does, or which is the immediate or necessary consequence of his act. A mortal wound given with a deadly weapon, in the previous possession of the slayer, with-' out any or upon very slight provocation, is prima facie willful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances. This is quoted and followed in Longley v. Commonwealth, 99 Va. (December, 1900), 807, and is also quoted and followed in S. v. Welsh, 36 W. Va., 690, and the same doctrine is well established in other Courts. There could hardly have been any provocation to cause the beating up a woman and cutting her throat from ear to ear but the deliberate intent to kill.

*783If this evidence satisfied the jury that the prisoner committed the homicide, the attendant circumstances of the killing by cutting her throat from ear to ear, beating up her head, and breaking her nose with a club, the wiping of the knife-blade in the grass and the hands with buds and leaves, if believed, was evidence from which the jury could infer that the killing was deliberate and purposeful, and not a sudden access of rage and such premeditation, if only for a moment, is sufficient to make it murder in the first degree. Certainly the judge could not tell the jury, without invading their province, that there was no evidence of murder in the first degree. It is stated that the charge defined the difference between murder in the first degree and in the second degree, and that there was no exception to it in any respect except in leaving the jury to pass upon the evidence as to murder in the first degree.

Formerly the defendant in a criminal proceeding was not allowed to go upon the stand in his own defense. But under our act of 1881, now Code, 1634, “The person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him.” This latter clause is omitted from the statute in England and in most of our States, in which failure of defendant to testify in a criminal action raises a pre-' sumption against him as in a civil action.

If the prisoner could have given testimony to acquit himself of this charge or to reduce it to a lesser degree of homicide, it is unfortunate that he did not go upon the stand to give the jury the benefit of his testimony. His failure to do so did not create any presumption against him and the judge must have so charged the jury, for it is stated that the charge was unexceptionable in every other respect. than in permitting the jury to consider the evidence in the light of murder in the first degree. The fact that he did not testify was a circumstance, like the bearing of a witness on the stand, or other conduct in the trial, which though not a matter of evidence (for it was a matter in the observation of the jury) may have had some weight with the jury as to the nature of the transaction of which there was no eye-witness, unless the prisoner was such. Whether he was or not he alone could testify.

The existence of premeditation and deliberation is for the jury, not for the court, if there is any evidence, and it may be inferred from the manner of the killing and the use of the weapon whether the slaying was deliberately done or in a transport of passion. S. v. Daniel, 139 N. C., 549.

Whether certain evidence shows premeditation and deliberation is a fact to be found by the jury, and not a conclusion of law to be drawn *784by tbe court. S. v. Daniels, 134 N. C., 676, citing S. v. Freeman, 122 N. C., 1012.

Tbe conviction of tbe prisoner of tbe homicide is largely due to bis being near tbe spot at tbe time, tbe identification of bis tracks, tbe outcry' of tbe woman and tbe prisoner’s flight. When tbe jury found tbe prisoner to be tbe slayer, tbe manner in 'which be used the knife and club and tbe absence of previous acquaintanceship and tbe cries of tbe woman were competent for tbe jury to consider on tbe question whether there was a deliberate intent to kill.

No error.