#### STATE v. ROBERT STEELE.

(Filed 18 November, 1925.)

1. Homicide — Murder—Evidence—Corroboration.

Where there is evidence that the defendant, on trial for the homicide, and the wife of the deceased bore illicit relations to each other, it is competent for the purpose of corroboration for the sheriff to testify to a statement made by him to the wife of defendant soon after the homicide and acquiesced in, “You have been with the defendant four weeks, five different Sundays, and you ought to have been with your husband,” on the question of motive of the defendant in committing the act.

2. Same — Appeal and Error — Objections and Exceptions.

Where upon the admission of evidence the court states upon the trial that it is for the purpose of corroboration only, it is not error for him to omit to so state in his instructions to the jury, in the absence of a special request thereto by the defendant.

3. Appeal and Error — Objections and Exceptions — Case.

Exception to an argument of the solicitor to the jury on the trial for a capital felony, made in the statement of case on appeal, comes too late for its consideration by the Supreme Court.

4. Homicide — Evidence—Motive—Appeal and Error — Objections and Exceptions.

Where the evidence tends to show the illicit relations of the prisoner and the wife of deceased, and there is plenary evidence of his having committed the homicide, it is competent for the solicitor to argue this to the jury upon the question of motive, and for the court to include it in his statement of the State’s contentions thereon.

5. Criminal Law — Homicide—Evidence—Questions for Jury.

Where the witness has pleaded guilty of murder in the second degree in connection with the homicide for which the defendant was on trial, the weight and credibility of her testimony is for the jury to determine, having a right to believe all or a part of her evidence.

*5076. Appeal and Error — Objections and Exceptions — Contentions of Parties — Instructions.

Where a party does not object at a proper time to the statement of a contention by the judge in bis charge to the jury, and fails to ask in apt time special instructions on that point, his exception for the first time in the record on appeal is unavailing.

7. Homicide — Murder—Premeditation.

The premeditation required to sustain a conviction of murder in the first degree, is that it must have been before the killing, in cold blood, for however short a time in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation, and subsequent acts may also afford evidence of the defendant’s guilt, but flight is not evidence of premeditation and deliberation.

Appeal by defendant from UNION Superior Court. McElroy, J.

Defendant was indicted for the murder of Will Cauthern. From a judgment on a verdict of “guilty of murder in the first degree,” defendant appealed. No error.

The State’s evidence tended to show that the body of Will Cauthern was found in a branch in Union County, and that his neck had been cut three times. The trachea was cut, as well as all the large veins and muscles of the neck, and the cartilage between the vertebrae was cut almost into the spinal cord. The jugular vein was cut and there was a cut on the back of his head,' a blunt cut, or tear, by some blunt instrument with serrated edges. All these cuts went to the bone and death resulted instantly. The gastric nerve was severed, with everything in the neck on the left side; that the cutting of the gastric nerve produces instant death as well as the severing of the carotid artery and jugular vein. The wound in the back of the head appeared to be one blow. There was no evidence of a fractured skull.

On or about 2 May, 1925, at night, the prisoner and Will Cau-thern and Mary, his wife, were together on the way to Will Cauthern’s house, and while the prisoner and Will Cauthern were walking side by side, the prisoner had a stick, stepped back just a little way, and struck Cauthern a blow. The prisoner had the stick in his hand, and as soon as he struck the deceased, the deceased hollered “Oh,” fell, and the defendant immediately began to cut him, and when the prisoner got up and ceased cutting him, he and Mary Cauthern lifted the dead body out of the road, over the fence and put it into a branch. .

The State contended, upon the evidence, that the motive of the prisoner in killing the deceased was due to intimate relations between the prisoner and the wife-of the deceased.

*508 Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

H. B. Adams for defendant.

Vabseb, J.

Tbe defendant’s first exception alleges tbe admission of a statement by tbe witness, Sheriff Fowler, to Mary Oauthern, while be was talking to her and trying to get her to tell him about tbe killing, that tbe prisoner bad already told about tbe killing, when be said to her: “I want .you to tell me tbe truth about this matter, we have suspected you all tbe time. You have been with Robert four weeks, five different Sundays, and you ought to have been with your husband.” Tbe objection was aimed at tbe latter clause of this statement. Tbe court only admitted tbe conversation for tbe purpose of corroboration. Mary Oauthern bad testified for tbe State. The witness Fowler said that after be made this statement to Mary, she denied it, and after she knew that tbe prisoner bad told about tbe homicide and her part in it, she told about tbe trip to her bouse and tbe killing on tbe way. Tbe evidence, tbe whole transaction, was competent for tbe purpose for which it was admitted. Tbe extent to which it did or did not corroborate Mary Cauthem’s testimony was for tbe jury. Prima facie tbe whole conversation with her was competent.

The defendant relies on S. v. Parker, 134 N. C., 209; Sprague v. Bond, 113 N. C., 551 and Lockhart’s Hand Book on Evidence, sec. 278.

. As stated in Sprague v. Bond, supra, and in S. v. Parlcer, supra, and Westfeldt v. Adams, 135 N. C., on page 600, it was then tbe rule that tbe trial judge must, with or without a request therefor, instruct tbe jury as to tbe limited purpose for which the corroborative evidence was admitted. However, since the amendment to Supreme Court Rule 27, adopted 16 March, 1904, now Rule 21, 185 N. C., 795 : “When testimony is admitted, not as substantive evidence, but in corroboration or contradiction, and that fact is stated by tbe court when it is admitted, it will not be ground for exception that tbe judge fails in his charge tO' again instruct tbe jury specially upon tbe nature of such evidence, unless bis attention is called to tbe matter by a prayer for instruction; nor will it be ground of exception that evidence competent for some purposes but not for all, is admitted generally, unless tbe appellant asks, at tbe time of admission, that its purpose shall be restricted.” Hill v. Bean, 150 N. C., 437; Tise v. Thomasville, 151 N. C., 281, 283. A mere objection will not do, there must be a request to limit to corroborative purposes. Elliott v. R. R., 166 N. C., 481, 484; S. v. McGlammery, 173 N. C., 748. In the absence of a request at tbe time of admission to limit its purposes, or a request for special instruction in regard to it, a failure to limit this evidence in the charge cannot be assigned as *509error. Beck v. Tanning Co., 179 N. C., 123, 127; Hill v. R. R., 180 N. C., 490, 493; Murphy v. Lumber Co., 186 N. C., 746, 748. Tbe record discloses a compliance witb tbe rule.

Exceptions 2 and 3 relate to tbe remarks of tbe solicitor in contending tbat tbe sheriff’s statements to Mary Cautbern, tbat sbe bad spent five Sundays witb tbe prisoner, and to argue tbat there was a motive, which bad been proved, tbat tbe prisoner desired to kill tbe deceased in order to use bis wife for illicit purposes, and tbat tbe evidence showed improper relations between tbe two. Counsel for prisoner did not object at tbe time or ask any special instructions. Tbe exceptions, made for tbe first time in tbe case on appeal, are without merit. Tbe prisoner evidently then thought there was no prejudice to him likely to arise. He did not object at tbe proper, time. It is now too late. Morgan v. Smith, 77 N. C., 37, Harrison v. Chappell, 84 N. C., 258; Warren v. Makely, 85 N. C., 15; Horah v. Knox, 87 N. C., 483; S. v. Suggs, 89 N. C., 527; S. v. Sheets, 89 N. C., 543; S. v. Lewis, 93 N. C., 581; S. v. Powell, 94 N. C., 965; S. v. Speaks, 94 N. C., 865; Holly v. Holly, 94 N. C., 96; S. v. Powell, 106 N. C., 635; Hudson v. Jordan, 108 N. C., 10; Byrd v. Hudson, 113 N. C., 203; S. v. Tyson, 133 N. C., 692; S. v. Horner, 139 N. C., 603; S. v. Archbell, 139 N. C., 537; S. v. Harrison, 145 N. C., 408; S. v. Wilson, 158 N. C., 599.

There was ample evidence to justify tbe solicitor in arguing to tbe jury tbat tbe evidence showed a motive, and tbat tbe prisoner and the wife of deceased bad been associating together in a manner tbat indicated undue familiarity. The prisoner admitted tbat deceased’s wife was witb him tbe Sunday before and tbe Sunday after tbe death of deceased. He further said sbe was at bis bouse one night and slept in tbe bed between prisoner and bis wife, and tbat be bad been taking care of deceased’s family when be was away. There were ample circumstances to justify tbe remarks and it was tbe duty of tbe solicitor to argue tbe whole case, and it is apparent, from tbe record, tbat this duty has been performed ably and fearlessly.

Exception numbered 5 shows no merit. There was ample evidence to justify a contention on the part of tbe State, and for tbe Court to submit this contention to tbe jury as to intimate relations between tbe prisoner and tbe wife of deceased.' Tbe testimony of tbe defendant fully justified tbe charge. Usually intimate relations are not susceptible of direct proof, and circumstances have to be relied on, but in tbe instant case tbe evidence is both circumstantial and direct.

Exceptions 6 and 7 relate to tbe stating of tbe State’s contention tbat Mary Cautbern saw tbe prisoner “fall back a step and strike Will (tbe deceased) across the back of tbe bead witb tbe stick.” Mary said in her testimony tbat Eobert and Will were in front and “I behind. I *510heard a lick and I beard bim (Will) boiler — Will hollered and wben I got up to tbem be was down on bim cutting bim — Robert was down on Will Cautbern cutting bim.” Sbe identified tbe stick tbat Robert bad wben be left bis bouse. Sbe indicated tbat sbe was, at tbe time of tbe lick, about as far as tbe witness-stand to tbe solicitor. Tbe physician’s description of tbe wound on tbe bead of deceased indicated one blow on tbe back of tbe bead with a blunt instrument — a severe blow tearing tbe skin in “serrated edges.” Mary Cautbern was an accomplice in tbe crime with tbe prisoner. Sbe pleaded guilty to a charge of murder in tbe second degree. Tbe jury bad a right to believe all or a part of her testimony, and tbe argument is amply sustained tbat, while sbe said sbe beard tbe blow, sbe was so close, only a few feet according to her indication, and tbat sbe saw it. There was no objection then, or later, and no request to correct tbe statement of contentions. Tbe trial court, at some proper and convenient time in tbe trial, preferably just before tbe jury leaves tbe box, ought to be given an opportunity to restate any contention tbat may be inaccurate, and a failure so to request or to ask for special instructions on tbat point eliminates tbe assignment of error. S. v. Grady, 83 N. C., 643; S. v. Reynolds, 87 N. C., 544; Clark v. R. R., 109 N. C., 431; S. v. Tyson, 133 N. C., 692; S. v. Davis, 134 N. C., 633; S. v. Cox, 153 N. C., 638; Phifer v. Comrs., 157 N. C., 150; Jeffress v. R. R., 158 N. C., 215; S. v. Blackwell, 162 N. C., 684; S. v. Fogleman, 164 N. C., 461; S. v. Cameron, 166 N. C., 384; Ferebee to. R. R., 167 N. C., 297; Barefoot v. Lee, 168 N. C., 90; Nevins v. Hughes, 168 N. C., 478; Ball v. McCormach, 172 N. C., 682; S. v. Freeman, 172 N. C., 925; S. v. Burton, 172 N. C., 942; S. v. Martin, 173 N. C., 808; Muse v. Motor Co., 175 N. C., 471; Mfg. Co. v. Building Co., 177 N. C., 106; Bradley v. Mfg. Co., 177 N. C., 155; Futch v. R. R., 178 N. C., 284; Hall v. Giessell, 179 N. C., 657; McMahan v. Spruce Co., 180 N. C., 637; Spears v. Power Co., 181 N. C., 447; S. v. Reed, 181 N. C., 507; S. v. Hall, 181 N. C., 527; S. v. Westmoreland, 181 N. C., 590; Green v. Lumber Co., 182 N. C., 681; S. v. Winder, 183 N. C., 777; S. v. Sheffield, 183 N. C., 783; S. v. Kincaid, 183 N. C., 709; S. v. Montgomery, 183 N. C., 747; S. v. Baldwin, 184 N. C., 791; S. v. Ashbum, 187 N. C., 723; S. v. Barnhill, 186 N. C., 446; Proctor v. Fertilizer Co., 189 N. C., 244.

S. v. Love, 187 N. C., 33, is not an apposite authority for tbe prisoner. Tbe error in tbat case was in tbe violation of a constitutional right of tbe defendant, wben charged with crime, to know tbe nature of tbe charge and to confront bis accusers and tbe witnesses against bim. In tbe case at bar tbe contention of tbe State was given, and no exception taken at tbe time or during tbe trial, and tbe contention was fully supported by tbe inferences naturally arising from tbe evidence. S. v. Cook, *511 162 N. C., 586, cited for prisoner, relates only to an expression of opinion by tbe trial court. There is no basis for such a contention here.

Exceptions 8, 9, 10 and 11 relate to tbe failure to charge tbe jury that there was no evidence of premeditation.

Murder in tbe first degree is tbe unlawful billing of a human being with malice, and with premeditation and deliberation. S. v. Thomas, 118 N. C., 1118; S. v. Benson,, 183 N. C., 795. Malice is presumed from tbe billing of a human being with a deadly weapon. S. v. Benson, supra.

“Deliberation means that tbe act is done in cool state of tbe blood. It does not mean brooding over it or reflecting upon it a weeb, a day, or an hour, or any other appreciable length of time, but it means an intention to bill, executed by tbe defendant in a cool state of tbe blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under tbe influence of a violent passion, suddenly aroused by some lawful or just cause, or legal provocation.” S. v. Coffey, 174 N. C., 814; S. v. Benson, supra.

“Premeditation means ‘thought before band’ for some length of time however short.” S. v. McClure, 166 N. C., 328; S. v. Benson, supra.

The facts and circumstances and the inferences readily drawn therefrom, are, in the light of the acceptance of the State’s contention by the jury, and its refusal to accept the prisoner’s plea of self-defense, ample to support a finding of premeditation and deliberation. This support is sufficient and does not include the evidence of secreting the body after the billing.

Subsequent acts, including flight or hiding the body, or burning the bloody clothes and otherwise destroying traces of the crime, are competent on the question of guilt. "Wigmore on Evidence (2 ed.), secs. 32, 172, 267, 273, 276 (see elaborate note appended to this section showing the holdings of the Federal and State courts); S. v. Tate, 161 N. C., 280; S. v. Westmoreland, 181 N. C., 595; S. v. Hairston, 182 N. C., 851; S. v. Collins, 189 N. C., 20; S. v. Stewart, 189 N. C., 347. The basis of this rule is that a guilty conscience influences conduct. From time immemorial it has been thus accepted. “The wicked flee when no man pursueth; but the righteous are bold as a lion.” — 28 Prov. 1. “Thus conscience doth make cowards of us all.” — Hamlet, Act III, scene I. “Guilty consciences always make people cowards.” — The Prince and- his Minister, Pilpay, chap. Ill, Fable III.

Flight is not evidence of premeditation and deliberation. S. v. Hairston, supra; S. v. Collins, supra; S. v. Stewart, supra.

The requirement, in first degree murder, in order to constitute “deliberation and premeditation” does not require any fixed time beforehand. These mental processes must be prior to the killing, not simul*512taneous, “but a moment of thought may be sufficient to form a fixed design to kill.” S. v. Norwood, 115 N. C., 790; S. v. McCormac, 116 N. C., 1033; S. v. Covington, 117 N. C., 834; S. v. Dowden, 118 N. C., 1145, 1153; S. v. Thomas, 118 N. C., 1113, 1123; S. v. Exum, 138 N. C., 599.

This case has been fairly tried by a careful, impartial and learned judge. The solicitor has performed his duty in all respects as becomes one charged with the delicate and important duties of that high office. Counsel for the defendant, appointed by the court to defend the prisoner as we are informed, have conscientiously and ably presented every phase of the situation that showed any hope for relief.

The charge of the eour-t is clear and complete. It applies the law to the evidence so that the jury could not have failed to understand every contention of the State and the prisoner.

The court below explained what is meant by reasonable doubt in the manner indicated in the rulings of this Court. We suggest, in addition to the definitions heretofore approved, for its practical terms, the following : “A reasonable doubt, as that term is employed in the administration of criminal law, is an honest, substantial misgiving, generated by the insufficiency of the proof; an insufficiency which fails to convince your judgment and conscience, and satisfy your reason as to the guilt of the accused.” It is not “a doubt suggested by the ingenuity of counsel, or by your own ingenuity, not legitimately warranted by the testimony, or one born of a merciful inclination or disposition to permit the defendant to escape the penalty of the law, or one prompted by sympathy for him or those connected with him.” Jackson, J., in U. S. v. Harper, 33 Fed., 471.

We have examined all the exceptions, and under well settled principles, are compelled to the conclusion that none of them can be sustained.

Let it be certified that, in the trial of this case, there is

No error.