#### STATE v. JIM BALLARD.

(Filed 27 January, 1926.)

1. Homicide — Malice—Evidence—Scienter—Murder in the First Degree.

Where the evidence on the trial of a homicide that the prisoner, knowing the deceased, an officer of the law, had come to arrest him, got a shot gun and went up the stairs to the second story of the house, loaded the gun and shot and killed the deceased through a hole in the floor, evidence that the prisoner on the preceding night personally threatened to “get” the deceased, etc., is competent as tending to show premeditated malice on the part of the prisoner towards the deceased, and objection that the witness had not heard the whole'conversation is untenable.

2. Trials — Improper Remarks of Counsel — Instructions — Appeal and Error — Prejudice—Harmless Error — Homicide.

It would be prejudicial error to permit uncorrected a characterization by a prosecuting attorney in his speech to the jury of the prisoner on trial for a homicide as a “human hyena,” but where the trial judge immediately stops him and at that time and later in his charge strongly emphasizes the impropriety of the remark, and tells the jury that the prisoner is entitled to a fair and impartial trial under the evidence, a new trial will not be granted on appeal.

Appeal by defendant from Grady, J., at June Special Term, 1925, of Gates.

Criminal prosecution tried upon an indictment charging the defendant with the murder of Vernon Eason.

On 5 May, 1925, about 9 :30 or 10:00 p. m., Vernon Eason, a deputy sheriff of Gates County, together with two assistant officers, his brother, Millard Eason, and S. A. Jenkins, went to the home of the defendant, Jim Ballard, who lives about four miles from Gatesville, to arrest him on a warrant charging him with resisting an officer. As the officers approached the defendant’s house, they separated, Millard Eason and Jenkins going to the rear of the house and Vernon Eason to the front. The house is a two-story dwelling with an 8-foot hall and stairway. Vernon Eason walked up to the door, knocked and called the defendant. He made no answer, but the other officers saw the defendant, who was sitting with his wife in their bedroom, get up, go to the bureau in his room and from the bureau to the bed, turn back the mattress, and then go out into the hall and start up the stairs. Just at this time, Cora Ballard, wife of the defendant, opened the front door and Vernon Eason said to the defendant: “Don’t go up stairs, I have papers for you.” The defendant had a gun in his hand and proceeded to the second floor of the house. Sally Mary Ballard, who was on the second floor, came running down the steps, and looking back at Jim Ballard, said, “Don’t shoot *123me.” Yernon Eason went into tbe bouse and was standing at tbe foot of tbe stairs wben be called to tbe defendant, wbo was tben at tbe top of tbe stairway with a shotgun in bis bands, to “come down I have papers for you.” Tbe other officers came into tbe hallway and were standing near Yernon Eason wben Sally Mary Ballard got a lamp and held it so it would shine on Yernon Eason’s face. Immediately tbe defendant from upstairs poked bis gun through tbe flooring, shot Yernon Eason in tbe face and chest, killing him almost instantly.

Consternation tben reigned for some time, several shots being exchanged between tbe officers and tbe inmates of tbe bouse, Cora Ballard joining in tbe shooting. Tbe two officers dragged tbe body of tbe deceased about thirty steps from tbe bouse, left it and went to a nearby bouse to call for help from G-atesville. They left tbe deceased lying on bis left side; wben they returned in a very short time, be was lying on bis back, with bis arms folded, bis bead bruised and bis skull knocked in. It was a bright, moonlight night.

Tbe defendant, testifying in bis own behalf, said that be did not load bis gun until be got upstairs, as be bad bis shells in bis band on tbe way up; that tbe deceased told him be would shoot him if be went upstairs; and that be did not shoot until after tbe officer bad shot at him. Tbe defendant fired tbe first shot according to tbe State’s evidence. He knew that tbe deceased was an officer and bad a warrant for bis arrest.

At tbe close of tbe evidence, defendant’s counsel suggested that tbe prisoner was guilty of murder in tbe second degree, at least, and requested tbe court to submit tbe case to tbe jury solely upon tbe question as to whether there was sufficient premeditation and deliberation to constitute murder in tbe first degree.

Tbe State contended that tbe prisoner deliberately armed himself with a gun and shot tbe deceased in cold blood, with malice aforethought and with premeditation and deliberation.

Tbe jury found tbe prisoner guilty of murder in tbe first degree, and from tbe statutory sentence of death pronounced thereon, this appeal is prosecuted.

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

Bridger & Bley for defendant.

Stacy, C. J.,

after stating tbe case: There was ample evidence offered on tbe bearing to warrant tbe jury in returning a verdict against tbe prisoner, as it did, of murder in tbe first degree. S. v. Benson, 183 N. C., 795. And from a careful examination of tbe entire record, we are pf opinion that appellant has no just grounds for complaint. His *124exceptions must all be resolved in favor of the validity of the trial. There are only two which merit any discussion.

The first exception is addressed to the admission of certain evidence tending to show malice on the part of the prisoner towards the deceased. Herbert Raby was allowed to testify, over objection, that he went out with Vernon Eason to Noah Ballard’s house on the night before the killing. Jim Ballard was there and in talking to Vernon Eason, the witness heard him say: “You are white and I am black. You are nothing but a meat man, just like me. It is no more for you to die than it is for me.” And he added: “I’ll get you.” There was some argument between the officer and the defendant, but the witness did not hear it all.

It is contended on behalf of the prisoner that this evidence was incompetent and should have been excluded, because the witness did not hear all that was said by the officer and the defendant, and for the further reason that there is nothing to connect it with the homicide. The exception is without merit. The evidence is clearly competent as tending to show malice on the part of the prisoner towards the deceased. It contains a threat against the deceased. S. v. Merrick, 172 N. C., p. 873.

In S. v. Norton, 82 N. C., 629, it was said that in a prosecution for assault and battery, where the intent with which the act was done was not an essential element of the offense, declarations of the defendant, threatening the prosecutor, made two weeks prior to the assault, were inadmissible, because they in no way helped to explain or elucidate the transaction under investigation. But in writing the opinion in that case, Ashe, J., took occasion to observe: “If the defendant had been indicted for murder, for an assault with intent to kill, for a conspiracy or forgery, or any other offense where the scienter or the quo animo constitutes a necessary part of the crime charged, such acts and declarations of the prisoner as tend-to prove such knowledge or intent are admissible, notwithstanding they may in law constitute a distinct crime. Dunn v. State, 2 Ark., 229; Thorp v. State, 15 Ala., 749.”

And in S. v. Exum, 138 N. C., 605, where the defendant was charged with murder, a prosecution similar to the one at bar, it was held that evidence tending to show previous threats on the part of the prisoner against the deceased, was “undoubtedly competent.” To like effect are the decisions in S. v. Wilson, 158 N. C., 599, S. v. McKay, 150 N. C., 813, S. v. Stratford, 149 N. C., 483, S. v. Rose, 129 N. C., 575, S. v. Hunt, 128 N. C., 589, S. v. Moore, 104 N. C., 743, and many others too numerous to be cited.

The prisoner’s second exception is addressed to certain remarks of one of the counsel for the State, who, in arguing the case before the jury, referred to the prisoner as a human hyena, and used language in substance as follows: “Remember, gentlemen, you are trying the defendant *125for bis life, for taking tbe life of one of your county’s young men, a brave and fearless officer of tbe law, a man of bigb character and standing, wbo bas been brutally murdered by tbe defendant wbo sits over there. He is a human hyena and should be treated as such.”

Tbe prisoner objected, and tbe court at once corrected tbe counsel wbo was speaking and directed that tbe statement be stricken out. Counsel apologized and then proceeded with bis argument. His Honor, also, added tbe following caution when be came to charge tbe jury: “Tbe fact that Jim Ballard is a negro hasn’t anything to do with tbe case. He bas as much right to a fair trial as you would have if you were charged with a like felony. He bas tbe same right to have you consider bis evidence and to give him each and every advantage you would give to a white man; and if you do not do it this trial will be a mere mockery, nothing more or less.”

Tbe characterization of tbe prisoner as a human hyena was, of course, improper, but tbe court was swift to interfere in bis behalf. Not only did be stop counsel at tbe time, but be also endeavored to remove any baneful effects from tbe minds of tbe jurors when be came to deliver bis charge. We think be did all that tbe law requires. See S. v. Tucker, 190 N. C., 708, where tbe subject was fully discussed at tbe present term.

After a careful and searching examination of tbe record, we are unable to discover any action or ruling of tbe trial court which was prejudicial to tbe prisoner. Tbe verdict and judgment must be upheld.

No error.