#### STATE v. CLARENCE DAVIS.

(Filed 22 December, 1918.)

1. Homicide — Evidence—Intoxication—Cursing.

Upon the trial for a homicide, where the evidence tended to show that the prisoner was beaten in a drunken row by his associates, then went to a house near by, got his pistol, and, returning, shot and killed the deceased, evidence as to whether he was cursing before the altercation took place is immaterial.

*7242. Appeal and Error — Homicide—Prejudice—Harmless Error.

An unanswered question ruled out upon tlie trial will not be beld as reversible error, especially when from tbe nature of tbe evidence adduced and tbe admissions respecting tbe answer no prejudice tó tbe appellant was likely to bave resulted.

3. Homicide — Evidence — Self-defense — Character of Deceased — Circumstantial Evidence.

Where, upon a trial for homicide with a pistol, there is no evidence of self-defense, and tbe evidence is not circumstantial, evidence of tbe character of tbe deceased for violence is properly excluded.

4. Courts — Discretion—Excluding Witnesses — Witness Remaining.

It is within tbe discretion of tbe trial judge to permit a witness who-, bad remained in court when the others had been excluded from the courtroom to testify. Lee v. Thornton, 174 N. C., 288, cited and applied.

5. Instructions — Intoxication—Appeal and Error.

Where the defendant on trial for murder in the second degree has been convicted of manslaughter and has received full benefit of tbe defense of intoxication under tbe court’s instruction, a reference therein to unconsciousness by voluntary drunkenness for tbe purpose of illustrating the charge will not be held as error.

6. Homicide — Deadly Weapon — Malice—Presumptions.

The law presumes malice from the killing of a human being with a deadly weapon and places the burden upon the defendant to satisfy the jury as to any matter of mitigation or excuse.

7. Homicide — Self-defense—Cooling Time — Evidence.

Where the evidence tends only to show that the defendant, after having been beaten by his associates, went to a near-by house and immediately returning with a pistol shot and killed tbe deceased, the-question of self-defense does not arise and that of “cooling time” was not relied on.

8. Homicide — Evidence—Questions for Jury — Trials.

Where there is conflicting evidence as to whether tbe deceased was-killed by a pistol shot of tbe defendant, or met bis death from another source by being stabbed with some sharp instrument, the question is for-tbe jury under a proper charge from the court.

9. Appeal and Error — Instructions -— Contentions — Objections and Exceptions.

Objection to an erroneous statement of a party’s contention should be called to the attention of tbe trial judge at tbe time so that he may bave an opportunity to make tbe proper correction, and an exception thereto otherwise taken will not be considered on appeal.

10. Appeal and Error — Technical Error — New Trials.

A new trial will not be granted on appeal for a technical error of tbe trial court when it clearly appears that it was not substantial and could, not have affected the result.

Claek, Cl J., concurring.

*725INdictmeNt for the murder of Lewis Shew, tried before Carter, J., and a jury, at August Term, 1917, of WilKEs.

Defendant was convicted of manslaughter, sentenced to three years imprisonment and appealed.

On Sunday afternoon, 22 October, 1916, the defendant had gone to the home of Isaac Clark for a visit, and later went to the home of Mrs. Lucy Clark near-by. At about dark the deceased Lewis Shew and two brothers and a man named Porter came down the road in the direction of Mrs. Olark’s “hollering and cursing.” Mrs. Clark went out and asked them to go away; defendant and Julius Clark then went out to where the boys were. Defendant gave the Shew boys some liquor, and Porter complained that he had been slighted. Defendant then started toward Porter with the bottle, whereupon Porter knocked him down, jumped on him and beat him. Defendant then went back to the home of Mrs. Clark and said to her son, “Julius, give me my gun; those boys have not treated me right.” He then went back to the scene of the fight. One witness stated: “Just after defendant left the house I saw a pistol in his hand. He went back up the road towards the granary or lumber house I spoke about awhile ago; he passed by me, went up there and met up with the other boys, and the pistol fired. I can’t say which one of the boys was closest; I don’t know who 'it was; I don’t know whether I heard Davis or Shew say anything before the pistol fired or not. The pistol fired three or four times, I could not say which. Clarence Davis fired the pistol. He was three or four steps, or about that distance, from either one of these boys when the pistol fired. After the pistol fired I saw one of them kind of go down. At that time I heard some cursing, and heard some one say, “God damn him, he has killed my brother and I am going to let him lay down by the side of him and die too!”

There was evidence of medical experts that the death’was caused by a gun-shot wound in the right breast, going through the lung and the right cavity of the heart, and that the wound might have been caused by a long sharp, round instrument, but there was no evidence that such an instrument had been used.

Simon Peyton Shew, brother of deceased, testified that with his brothers and Porter he was coming toward Mrs. Olark’s house when the defendant and Julius Clark came up to them in the road. Defendant offered them some liquor, and Porter complained because he had not been offered any; then he knocked defendant down and got on top of him. After they were parted, defendant went to Mrs. Clark’s house and returned with a pistol and shot deceased. The witness then stated: “I caught the gun and it fired out through the field; the next time I caught it and jerked it out of his hand and hit him with it. . ; . After *726I bit Clarence Davis a lick or so I went and looked at Lewis, and be drew up a little bit. I saw be was dead and went back and bit Clarence Davis several times.”

There was mueb conflicting evidence as to details, but none as to tbe fact of tbe homicide, and all showed that it resulted from a drunken brawl in which all tbe participants were more or less intoxicated.

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

J ohn B. J ones and Ilachett & Gilreath for defendant.

Waleer, J.,

after stating tbe ease: Tbe defendant contended that be did not kill tbe deceased, but that be was shot by someone else, present at tbe time of tbe killing and who bad a pistol of. smaller calibre than tbe one be carried, and offered evidence, including medical testimony, as to. tbe nature and extent of tbe wound, to prove bis contention. During tbe trial be entered numerous exceptions to tbe rulings of tbe court, as many as sixty-three in all, but- has abandoned twenty-eight of them; and of those that are left there are several which are pointed to tbe same question, and we will, therefore, consider them in groups.' There are some of them so plainly irrelevant or immaterial as not to require separate discussion, and others taken to rulings which, if erroneous, were manifestly harmless, though we do not mean to imply that they were erroneous.

We will consider and discuss those which are vital or substantial, and make only brief reference to some others' which could not have affected tbe result even if there bad been error.

1. Whether the. defendant was cursing or not before the altercation took place was immaterial. It was not contended by the State that he was, and the evidence offered could throw no light upon the question whether — after he had gone to the house and got his pistol, and then' returned to the place of the homicide — he fired his pistol and killed the deceased. There was no evidence that he had cursed up to the time when he was knocked down by Porter, who thought that he had been slighted when a bottle was being passed around. There was nothing to show that, until he was so assaulted, the defendant had acted otherwise than as a peaceable man. His guilt turned upon what he did from that time until the deceased was shot and killed.

2. The exclusion by the court of the question as to what a witness for the State had said during an examination of him and other State witnesses by defendant’s counsel, with the permission of the court, is not reversible error, because it does not appear how the witness would have answered it, or that his anwser would have been favorable to de*727fendant; but, on tbe contrary, there is strong presumption tbat be would bave answered it unfavorably, and counsel admitted tbat if be did so tbey would not offer evidence to contradict bim. It would not be fair to tbe State or to tbe witness, if we should permit bim to be ■thus discredited by tbe mere form in which tbe question is asked, without some assurance tbat be will admit tbe contradiction, or conflict, between bis present testimony and bis former statement. But it suffices to say tbat we are not informed as to what bis answer would be. Under tbe circumstances, and with tbe admissions stated in tbe record, tbe defendant could hardly bave expected bim to say tbat be bad contradicted himself, or, what is more, tbat be was prejudiced by tbe ruling. Jenkins v. Long, 170 N. C., 269, seems to be directly applicable, and shows tbat there was no reversible error because no prejudice, and there are other cases to tbe same effect. Hollifield v. Telephone Co., 172 N. C., 714; Rawls v. R. R., ibid., 211; McMillan v. R. R., ibid., 853. This covers tbe five exceptions relating to this question.

3. Tbe questions as to tbe character for violence of Lewis Shew, tbe deceased, and Ernest Porter, were incompetent, because tbe evidence was not circumstantial, nor was there any showing tbat tbe defendant fired tbe pistol in self-defense. S. v. Turpin, 77 N. C., 473; S. v. Exum, 138 N. C., 599; S. v. Banner, 149 N. C., 519; S. v. Blackwell, 162 N. C., 680.

It was said in S. v. Banner, supra: “Tbe exceptions to tbe rule tbat tbe character of tbe deceased cannot be put in evidence are: (1) When there is evidence tending to prove tbat tbe homicide was committed in self-defense; (2) when tbe evidence is wholly circumstantial and tbe character of tbe transaction is in doubt,” citing S. v. Turpin, supra; S. v. Byrd, 121 N. C., 688; S. v. McIver, 125 N. C., 646.

As to whether tbe witness Gr. Miller, who remained in court after an order bad been made excluding witnesses, should be permitted to tes-, tify as to what occurred at tbe coroner’s inquest, was a matter within tbe sound discretion of tbe court, tbe exercise of which is not reviewable here. We so held at tbe last term of this Court in Lee v. Thornton, 174 N. C., 288, where tbe question is fully considered and many authorities cited. In tbat case tbe witness was excluded by tbe court while here tbe State was allowed to examine him. See, also, S. v. Hodges, 142 N. C., 676, and S. v. Lowry, 170 N. C., 730, where it is said, at page 734: “Tbe prisoners also except because, after tbe court bad made an order tbat no witness for tbe State or for tbe prisoners should be allowed in tbe courtroom during tbe trial, a witness for tbe State who remained in tbe courtroom was permitted to testify. Tbe prisoners moved for a nonsuit on tbat ground, and also to set aside tbe verdict, and excepted to the denial of these motions. But it is a *728matter in the discretion of the court whether such witness shall be examined or not. 12 Cyc., 547. The same point was made in S. v. Hodges, 142 N. C., 676, and it was held that this was a matter which rested in the discretion of the presiding judge. The same ruling was made in S. v. Sparrow, 7 N. C., 487, and Purnell v. Purnell, 89 N. C., 42, and is stated as settled law in the text-books. 1 Greenleaf Ev., secs. 431 and 432 and notes, and 2 Bishop New Criminal Proceedings (2 Ed.), secs. 1191 to 1193a.”

It was contended by the defendant in Lee v. Thornton, supra, that the court could not exclude the witness and thereby deprive him of his constitutional right to have the witness heard by the jury, but in this case the court did what the defendant insisted in that case it was legally right to do. So that, in any view of the ruling, the court in this case was correct.

4. Exceptions as to the reference of the court in its charge to unconsciousness produced by voluntary drunkenness should be disallowed, as this was said merely for the purpose of illustration, and to properly discriminate between unconsciousness caused by the prisoner’s voluntary act, and that not so caused. The judge distinctly charged as to the mental condition which would excuse the act of killing, when he said-: “It would be sufficient for him to show that he was in a state of unconsciousness or insanity |aused by the blow inflicted upon him,” but what the defendant did and said after he had received the blow was so thoroughly inconsistent with such fi state of mind as to render this excuse for the homicidal act inadmissible. S. v. English, 164 N. C., at p. 512; S. v. Murphy, 157 N. C., 614; S. v. Shelton, 164 N. C., 513. The defendant has had the full benefit of the contention that he was unconscious or not in such a state of mind that he could premeditate or deliberate or form any criminal intent, if that was material under the authorities just cited, as he was not tried for murder in the first degree, and was convicted only of manslaughter, where no specific intent is required to constitute the crime as in the higher felony of murder in the first degree. The doctrine is fully explained in S. v. Murphy, supra, and S. v. Shelton, supra.

5. There are many objections to the charge, but none of them, in our opinion, is sound. The court instructed the jury fully as to every phase of the case upon which there was evidence and explained the law fully and clearly. It is a familiar rule that when the State has shown that the defendant killed the deceased with a deadly weapon, the burden shifts to him, and he must satisfy the jury as to any matters of mitigation or excuse, or the jury should convict him of murder in the second degree, as the law in such a case implies the malice. The charge as to the several degrees of homicide and as to the burden of proof was *729strictly in accordance witb precedents. S. v. Brittain, 89 N. C., 481; S. v. Simons, 154 N. C., 197; S. v. Rowe, 155 N. C., 436; S. v. Yates, ibid., 450, and S. v. Heavener, 168 N. C., 156. Besides, tbe conviction was of manslaughter, and the question of malice is not involved in that crime. But, if the verdict had been one for murder in the second degree, we think the charge upon malice with reference to that degree of the homicide, was quite favorable to the accused, as the judge referred to his former instruction and finally placed the burden to show it upon the State. The defendant surely has no reason to complain.

There was really no element of self-defense. After the defendant went to the house and got his pistol and then returned to the field of combat, he assumed the character of an aggressor as the evidence shows. He could easily have avoided another conflict, and instead of acting in self-defense, the proof tends to show that his motive was one of revenge, or of satisfaction, for the supposed wrong inflicted upon him, the question of cooling time not being presented, as in S. v. Merrick, 171 N. C., 788. The case, therefore, was not within the rule stated as to the nature and extent of the right of self-defense in S. v. Barrett, 132 N. C., 1005; S. v. Blackwell, 162 N. C., 672, at 683; S. v. Johnson, 166 N. C., 392, at 395, cited by the learned counsel of the defendant.

The exceptions to the instructions as to the nature of the wound, whether inflicted by a pistol or long and sharp instrument, as bearing upon the question whether the defendant actually killed the deceased, cannot, be sustained, as these matters were for the jury and were submitted to them under proper instructions. If the judge failed to state the contentions of the defendant properly, his attention should have been directed to the error at the time, so as to afford opportunity for correction. McMillan v. R. R., 172 N. C., 853. Even if there is technical error, courts will not reverse where, it clearly appears that it is not substantial and could not have affected the result. Goins v. Indian Training School, 169 N. C., 737; Elliott v. Smith, 173 N. C., 265.

Some of' the objections in this case are purely technical in character, and, while we do not think any error is made to appear, yet, if it had been, in the respect alleged, we are satisfied that no harm has resulted and that there is nothing to justify a belief that, except for the error, the verdict would have been different from what it is. Goins v. Indian Training School, supra; Elliott v. Smith, supra; Schas v. Assurance Co., 170 N. C., 420. We have given full and careful consideration to the record and the argument of the learned counsel, and have found no reason for disturbing the judgment.

No error.

*730Clark, C. J.,

concurring: In S. v. Craine, 120 N. C., 601, it was held, approving Smith, C. J., in S. v. Grady, 83 N. C., 683, and Ruffin, G. J., in S. v. Stanton, 23 N. C., 424, that on an appeal from a conviction of a lesser degree of homicide upon an indictment for murder, if the case is sent back for a new trial, “it would be had for the offense of murder in the first degree, as charged in the indictment.” This case has been cited and approved on this point in S. v. Groves, 121 N. C., 568; S. v. Freeman, 122 N. C., 1016; S. v. Matthews, 142 N. C., 622. The same is held in Trono v. U. S., 199 U. S., 521, which “has reviewed the authorities and sustained the principle that a new trial in a capital case goes to the whole case, regardless of the former verdict.” S. v. Matthews, supra.

It may, therefore, be well for the prisoner that he has escaped a new trial, for there is evidence that after leaving the fight he procured the deadly weapon and returned expressing his intention to use it. If the jury should find, and there is evidence to justify it in so finding, that there was sufficient “cooling time,” this would warrant, on another trial, a verdict of murder in the first degree, or at least murder in the second degree. As it is, the conviction is only of manslaughter with a punishment of three years in the State’s Prison.

Possibly the prisoner may not have fully considered the fact that. the result of a new trial might have been less favorable to him.

This was a drunken row in which one man was killed and several were badly injured. It is rarely that a homicide is brought on appeal to this Court in which intoxicating liquor was not the cause of the slaying of a fellow being. The¡ people of the State in 1907 by 44,000 majority decided to put an end to the traffic and numerous statutes have been passed since by the Legislature to cure defects which have been found by the courts, from time to time, to prevent the efficient execution of the law. The Federal Government has since passed a statute conferring full power upon each State to prevent the importation of liquor from other States as well as its manufacture and sale in its own orders, and an amendment to the United States Constitution has passed to apply to the whole Union and is now pending adoption by the requisite number of States.

The enormous profit in the violation of our statutes alone stands in the way of the prevention of crime caused'by this illicit traffic. It rests with the officials of the State and counties by an efficient execution of the law to prevent such lamentable occurrences as that presented in this record.