#### STATE v. FRED BRINKLEY and ALBERT BRINKLEY.

(Filed 22 February, 1922.)

1. Appeal and Error — Criminal Law — Objections and Exceptions — Evidence — Nonsuit.

An exception to a motion to dismiss in a criminal action taken after tbe close of tbe State’s evidence, and renewed by defendant after tbe introduction of-bis own evidence, does not confine tbe appeal to tbe State’s evidence alone, and a conviction will be sustained under tbe second exception if there is any sufficient evidence on tbe whole record of tbe defendant’s guilt. C. S., 4643.

2. Homicide — Evidence—Dying Declarations — Conspiracy—Nonsuit.

Where, upon tbe trial of two defendants for murder, there is evidence that one of them struck tbe deceased with a rock that caused bis death, in tbe presence of tbe other, with circumstances tending to show that tbe other was aiding and abetting tbe assault,- with evidence of tbe dying declaration of tbe deceased, “Boys, you have killed me; I did not think you would do it,” a motion of defendants to dismiss is properly refused.

3. Evidence — Dying Declarations.

An exception to tbe admission of dying declarations, in an action for a homicide, that they were incomplete to tbe prejudice of tbe defendants, cannot be sustained, where tbe witness has testified to them in full, they were sufficient for tbe purpose of conviction with tbe other evidence, and tbe incompleteness objected to was caused by tbe dying condition of tbe declarant.

4. Homicide — Criminal Law — Deadly Weapon — Evidence—Matters in Excuse — Burden of Proof.

Where, upon tbe trial of murder, it is admitted by tbe defendant, or established as a fact, that, with a deadly weapon, be struck tbe blow that resulted in death, tbe law presumes malice, and tbe burden then rests upon tbe defendant, throughout tbe trial, to show such facts or circumstances as will reduce tbe degree of tbe offense, or acquit him thereof. Tbe rule as to tbe burden of proof in civil actions does not apply.

5. Homicide — Murder—Criminal Law — Evidence—Deadly Weapon — Conspiracy — Manslaughter—Trials.

Tbe evidence on .this trial for murder that tbe deceased bad money which be lost to tbe .two defendants while gambling with them at their invitation, tbe quarrel between him and defendants, their withdrawal together, the deceased walking between them, the infliction of tbe mortal wound by one of tbe defendants, and the dying declaration of tbe deceased, “Boys, you have killed me,” is held, sufficient, with tbe other evidence, of a conspiracy between tbe defendants, and to convict tbe one striking tbe mortal blow of murder in tbe second degree and tbe other of manslaughter.

6. Homicide — Murder—Evidence—Conspiracy.

Where a conspiracy to commit tbe homicide accomplished has been proven on tbe trial, tbe acts and declarations of each defendant in furtherance of the common illegal design are competent against both.

*721,7. Same — Appeal and Error — Harmless Error.

Where, upon a trial for conspiracy resulting in death, it is established that one of the two defendants killed the deceased with a deadly weapon in the presence of the other, without just provocation or show of resistance, the dying declaration of the deceased that he had no knife is consistent with the position that none was used, and its exclusion is not prejudicial error.

8. Evidence — Witnesses — Subpoenaed — Appeal and Error — Harmless Error.

Where, upon the trial for a homicide, the testimony of a witness for the defense has been excluded, refusal of the court to permit the defendants to show that this witness had also been subpoenaed by the State, and not introduced by it, is not reversible error.

9. Instructions — Evidence—Expression of Opinion — Statutes.

Where there is evidence of conspiracy of the two defendants on trial for murder, with that of deceased’s dying declaration, “Boys, you have killed me,” a requested instruction that the declarations raised a doubt as to which one had struck the fatal blow, and that both defendants should be acquitted if the jury should be in doubt, is an expression of opinion upon the evidence, forbidden by the statute, especially when it has been admitted that a certain one of them had done so.

10. Appeal and Error — Objections and Exceptions.

An exception to the analysis of the contention of the parties in the court’s instructions comes too late after verdict.

11. Instructions — Contentions—Appeal and Error — Harmless Error.

The judge in his charge to the jury is not required to recite in detail all of the prolix testimony of the witnesses in stating the contentions of the parties, and his charge will not be held for error if he substantially submits them without unduly stressing those of one of them, and is not otherwise prejudicial to the appellant.

12. Homicide — Murder—Manslaughter—Evidence—Intent—Conspiracy.

Where, upon the trial of murder, it is admitted that one of the defendants struck the fatal blow with a deadly weapon, in the presence of the other, who was aiding and abetting him, it is permissible for the jury to find for their verdict that the one who struck the blow was guilty of murder, and that the other, being without the intent to kill, was guilty of the less offense of manslaughter.

CeimiNal action, tried, before Lane, J., and a jury, at July Term, 1921, of Catawba.

Defendants were indicted for the murder of Homer Barringer. The State waived a verdict for murder in the first degree, and requested a verdict of murder in the second degree or for manslaughter.

There was evidence tending to show, and it is admitted in the brief of the defendants, that Albert struck the deceased in the forehead with a rock, inflicting a wound which resulted in his death. There was evidence tending to show that the deceased said in his dying declaration *722that the wound had been inflicted by the defendant Fred. Albert was convicted of murder in the second degree, and Fred of manslaughter.

Both defendants appealed.

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

Wilson Warticle, Self, Bagby & Aiken for the defendants.

Adams, J.

After the State had produced its evidence and rested its ease, the defendants moved to dismiss the action for want of sufficient evidence to sustain the prosecution. They excepted to the court’s denial of their motion and introduced evidence, and at the close of all the evidence again moved for judgment as of nonsuit. To the refusal of the latter motion they excepted, and now insist that they are entitled to the benefit of the first, as well as the second exception. Both the terms of the statute and the decisions of the Court are adverse to this argument. The defendants are entitled to the benefit only of the latter exception. C. S., 4643; S. v. Killian, 173 N. C., 793. Consideration of the latter exception, therefore, includes all the evidence. For this reason the motion to dismiss the action cannot avail the defendant Albert Brinkley, because he admits that he struck the deceased with a rock; nor the defendant Fred (1) because the dying declaration of the deceased was evidence for the jury, and (2) because there-was some evidence of a conspiracy or concert of action between the defendants. . True, the defendants insist that the dying declaration should have been excluded because it was fragmentary; but the cases cited to sustain this conclusion do not apply to the evidence, for they merely decide that where a witness relates a part of a conversation in behalf of one party, the opposing party is entitled to the whole conversation. But here the witness related the entire dying declaration; and the fact that the deceased became too weak “to tell the whole story,” and then fell into unconsciousness does not render incompetent the declaration he made after saying, “I know I am going to die.” S. v. Shouse, 166 N. C., 306; S. v. Williams, 168 N. C., 191; S. v. Watkins, 159 N. C., 482; S. v. Laughter, ibid., 488.

The judge instructed the jury in substance that the defendant Albert admitted that he struck the mortal blow, and that the burden was upon him “all the way through” to show mitigating facts and circumstances to reduce the crime, and to make good his plea of self-defense. To this instruction the defendants objected on the ground that the burden of proof does not shift on establishing a prima facie case by the State, but continues on the State throughout' the trial. His Honor further instructed the jury in substance that the intentional killing of a human being with a deadly weapon implies malice, and that the burden then *723rests upon tbe defendant to sbow to tbe satisfaction of tbe jury facts and circumstances sufficient to excuse tbe homicide or to reduce it to manslaughter. This is a correct legal proposition, and tbe charge must be considered in its entirety. In S. v. Capps, 134 N. C., 627, it is said, “There is no principle in tbe criminal law better settled than that, where tbe killing with a deadly weapon is admitted, or proved, in tbe sense that it is established as a fact in tbe case, tbe law implies or presumes malice, and at common law tbe killing, if nothing else appears, is murder. S. v. Willis, 63 N. C., 26; S. v. Johnson, 48 N. C., 266; S. v. Brittain, 89 N. C., 481. When this implication is raised by an admission or proof of tbe fact of killing, the burden is upon tbe defendant of showing all tbe circumstances of mitigation, excuse or justification to tbe satisfaction of tbe jury. S. v. Johnson and S. v. Willis, supra; S. v. Vann, 82 N. C., 631; S. v. Barrett, 132 N. C., 1005. And that burden continues to rest upon him throughout the' trial. S. v. Brittain, supra.” And in S. v. Lane, 166 N. C., 339: “Tbe burden is on tbe defendant to establish such facts to tbe satisfaction of tbe jury, unless they arise out of tbe 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.” In North Carolina no principle in tbe law of homicide is more firmly established than this. S. v. Wilcox, 118 N. C., 1131; S. v. Fowler, 151 N. C., 731; S. v. Hagan, 131 N. C., 802; S. v. Brittain, 89 N. C., 501; S. v. Cameron, 166 N. C., 379; S. v. Orr, 175 N. C., 773; S. v. Spencer, 176 N. C., 715. In White v. Hines, 182 N. C., 275, in discussing tbe burden of proof in civil actions this Court held that tbe rule therein stated was not intended in any way to modify tbe well established principles applying to tbe law of homicide.

After stating certain contentions submitted by tbe State, bis Honor charged tbe jury as follows: “If you find • that tbe defendants entered into a common enterprise, a joint enterprise there, and that they both wilfully entered into a combat with this man, fought him wilfully and wrongfully, and assaulted him with a deadly weapon, struck him a blow which resulted fatally, without excuse or justification, you will find them guilty of murder in the second degree, unless they have shown to your satisfaction such facts and circumstances as would reduce it to manslaughter by rebutting and doing away with the element of malice.” To this instruction the defendants excepted on the ground that the evidence did not justify any theory or contention that both the defendants fought or assaulted the deceased, or that there was concert of action *724between them at or preceding tbe time tbe mortal blow was inflicted. We are not prepared to concur in tbis conclusion. Testimony as to wbat took place between tbe defendants and tbe deceased at Newton on tbe day before the boraieide and afterward; as to “a bandfnl of bills” exhibited on Saturday by tbe deceased in tbe presence of tbe defendants; as to tbe defendants’ suggestion that be should go to Fred’s bouse on Sunday and play cards with them; as to Fred’s promise to provide one-half gallon of liquor; ¿s to tbe drinking, and shooting of dice; as to tbe game of poker which, begun at 5 in tbe afternoon was continued by moonlight until 10 o’clock; as to tbe loss of money by tbe deceased and án effort to borrow more; as to tbe quarrel between him and Albert in Fred’s presence; as to their withdrawal from tbe woods together — Albert followed by tbe deceased and tbe deceased by Fred — and their conduct on tbe way; as to tbe mortal blow and the outcry of tbe deceased, “Boys, you have killed me; I did not think you’d do it” — these and other circumstances constituted evidence for tbe jury on tbe question whether tbe defendants bad previously conspired together, or whether at tbe time tbe mortal blow was given they were acting in concert. If tbe alleged conspiracy was established, tbe acts and declarations of each of tbe defendants in furtherance of tbe common illegal design were admissible against both. S. v. Jackson, 82 N. C., 565; S. v. Anderson, 92 N. C., 732; S. v. Brady, 107 N. C., 828; S. v. Mace, 118 N. C., 1244. Tbe exceptions relating to tbis instruction cannot, therefore, be sustained.

Tbe court’s refusal to permit tbe defendant Fred Brinkley to testify that tbe deceased said a short while after tbe blow was given that be did not have bis knife, and tbe court’s refusal to permit tbe defendants to show that Preston Drum, who was examined for tbe defendants, bad been subpoenaed by tbe State, cannot be assigned for reversible error. As to tbe former, if tbe declaration of tbe deceased bad been admitted, it would have been entirely consistent with the theory that be bad not attempted to use a knife, and its tendency to corroborate Fred or any other witness would have been negligible; and as to tbe latter, tbe principle announced in S. v. Harris, 166 N. C., 243, and other cases, would not apply for tbe reason that there is nothing in tbe record to show that tbe State would not have introduced Preston Drum as a witness in rebuttal. As said in S. v. Roberson, 150 N. C., 840, “We are of opinion that tbe rejected evidence tended to throw no light upon the real question at issue, and could not possibly have been of any value to tbe defendants bad it been admitted.”

Tbe defendants requested tbe court (1) to instruct tbe jury that if they -accepted tbe testimony offered by tbe State as to tbe dying declaration of tbe deceased, tbis testimony would be effective to raise a reasonable doubt as to tbe guilt of Albert; and (2) that if tbe jury should be *725in doubt as to which of the defendants struck the mortal blow, both defendants should be acquitted. These prayers were properly refused; the first embodies an expression as to the weight of the evidence; besides Albert admitted and Fred testified that Albert struck the mortal blow.

The defendants excepted also to the court’s analysis of certain contentions ; but an exception of this character cannot be entered first after verdict; it must be taken during the charge or at its conclusion. Phifer v. Comrs., 157 N. C., 150; S. v. Tyson, 133 N. C., 692; S. v. Davis, 134 N. C., 633; Green v. Lumber Co., 182 N. C., 681.

We have carefully examined all the prayers for instructions which were tendered by the defendants in connection with the charge of the court, and are of opinion that his Honor submitted to the jury, in substance at least, all the contentions of the defendants, and did not unduly stress the contentions of the State. “To permit a party to ask for a new trial because of an omission of the judge to recite all the details of prolix testimony, or for an omission to charge in every possible aspect of the ease, would tend not so much to make a trial a full and fair determination of the controversy as a contest of ingenuity between counsel.” Boon v. Murphy, 108 N. C., 191. His Honor was careful to instruct the jury as to the defendant Fred that the burden was upon the State to satisfy the jury beyond a reasonable' doubt of his participation in the difficulty. The jury evidently concluded from the admission of Albert that he struck the mortal blow with a rock, and that, failing to show such facts and circumstances as were sufficient to excuse the homicide or to reduce it to manslaughter, he was guilty of murder in the second degree; and that Fred aided and abetted Albert, but not with intent to kill, and was therefore guilty only of manslaughter. 21 Cyc., 694.

Upon review of the entire record, we find no reason for interfering with the verdict and judgment of the court.

No error.