#### STATE v. HECTOR GRAHAM.

(Filed 2 November, 1927.)

1. Courts — Constitutional Haw — Statutes—Emergency Judges — Governor —Commission—Issues.

While our Constitution, Art. IY, sec. 11, provides for the appointment of emergency or special judges by statute, and our statute confers the power of their appointment upon the Governor under the restrictions of the Constitution that it may be done when the judge assigned thereto, by reason of sickness, disability or other cause, is unable to attend and hold the court, and when no other judge is available, the validity of the trial for a homicide during the designated term may not be questioned by the defendant upon his affidavit filed subsequent to' the trial, raising an issue as to whether the resident judge of the district was available at the time of the trial.

2. Same — Appeal and Error.

Where the prisoner tried for the commission of the capital offense of murder at a term of court held by an emergency or special judge appointed by the Governor under the provisions of our statute, has attempted to raise an issue as to the validity of the trial by reason of the availability of the resident judge to hold the term, by affidavit made by him for the first time after his conviction, no question of law or legal inference is raised as to matters of error upon the trial itself, which comes within the power conferred by our Constitution, Art. IV, sec. 8.

3. Same — De Jure — De Facto.

Where the emergency or special judge holds a term of court under commission from the Governor, pursuant to constitutional and statutory authority, he is in the exercise of his office as a matter of right.

*4604. Homicide — Murder—Evidence—Premeditation—Criminal Law.

Upon the trial for the commission of the capital offense of murder, where there is evidence that the prisoner killed the deceased by shooting him with a pistol, testimony that he had told the witness ten days before the killing that “he was going to get'even with” the deceased is competent upon the question of premeditation or deliberation that would make the offense murder in the first degree.

5. Criminal Law — Husband and Wife — Evidence of AVife.

While in a criminal action against her husband the wife may not testify against him, her remarks made to him shortly before the commission of the crime, in the presence of third parties, tending to show his guilt, and not replied to by him, may be testified to by a party hearing it and being present at the time.

6. Homicide — Plight—Escape—Evidence.

The flight and concealment of the prisoner after a homicide he has committed, is a circumstance to be considered by the jury as‘ evidence of his guilt, when properly excluded by the judge as evidence of premeditation or deliberation required for a conviction of the capital felony of murder in the first degree.

7. Instructions — Statutes.

An instruction meets the requirements of C. S., 564, to state the evidence in a plain and correct manner and declare and explain the law arising thereon, when it clearly applies the law to the evidence introduced upon the trial, gives the position taken by the respective parties as to the prominent and controlling features which make for the ascertainment of the facts, and the complaiping party should call to the attention of the court the minor and relevant matters of evidence when an opportunity is afforded them that may tend to influence a verdict in their favor and bring the question up on an appeal from an overruled exception duly entered.

8. Homicide — Murder—Capital Felony — Evidence—Verdict—Appeal and Error.

Held, upon this trial for a capital felony, the evidence was sufficient to sustain a verdict of guilty of murder in the first degree.

OeimiNal action, tried, before N. A. Townsend, Special Judge, and a jury at August Term, 1927, of Hone.

The prisoner was indicted for the murder of Paul W. Johnson and was convicted of murder in the first degree. From sentence of death he appealed, assigning exceptions, which appear in the opinion.

The deceased lived in Raeford and had a farm in the county six or seven miles distant. The homicide occurred at the farm about 2 p.m., 12 August, 1927. F. P. Johnson, brother of the deceased, had a grist mill which was not very far from the prisoner’s house. Early in the morning on the day of the homicide the prisoner saw the deceased at *461the mill and went from the mill to Curtis’s, thence to Gillis’s in Cumberland, then back to Curtis’s to get his wife, who had been there since Thursday. Meantime the deceased had returned to his farm. The prisoner and his wife on their return from the Curtis place were traveling in a two-seated open car. In going home they went by the farm where the deceased and Sam Stewart were doing some work about the barn. There the roads crossed, and the prisoner turned from the Puppy Creek Eoad into the Mail Eoad, stopped his car, and called to the deceased. As to subsequent events there is sharp conflict in the evidence. Henry Eay, who lived 100 yards away, testified for the State: “About 2 o’clock I was in the porch and I saw the car drive up there and turn off right there and stop. I looked down the road and I saw Mr. Paul Johnson come up to the car. He came up there, and he put his foot upon the running board and he talked to who was in there, but mind you I didn’t know it was Hector Graham. He talked a few minutes about as long as I have been sitting here, I guess, and he took his foot off the running-board and he sort of turned away — he was this way (illustrating), and he turned away, and I think they were done talking, and by this time the shooting took place, and Mr. Johnson ttirned, stumbled over that way, and he went over that way, and the car pulled out, and he went back there a few steps and he fell. I know he just fell — about the length of himself he fell — I think that. I heard two shots. When the shots were fired Mr. Johnson wasn’t anywhere from the automobile. He had just passed the hind end of the car, going that way. The car was going that way, and he hadn’t turned far enough from the ear to be anyways from it. He hadn’t been far from it; he hadn’t been nowhere from it. He hadn’t went nowhere from it; he didn’t have time to go nowhere from it. Mr. Johnson went back that way as far as he did go. I don’t know how he got down there, whether he just fell that far or whether he walked a little bit before he did fall. After a short while, I went up .there to see where he was. He had disappeared out of my sight, and I went up there to see what, if I could discover where he was, and I seen him prostrated in the road there. He was just lying there, and I couldn’t tell what condition he was in because I didn’t have any reason to trouble unless sume one with authority, like the doctor, to put hands to him or nothing at all. I discovered though that he was dead. There wasn’t any fussing or loud talking or anything like that. There was not any fight of any kind. This was an open car. Had a top on it, but I don’t recall whether it was a one or two-seated car. Just whenever the pistol shot then the automobile pulled out. The engine of that car stopped running when he stopped there.”

*462Alice Campbell, a witness for tbe State, said: “I live on Raeford Road on tbe right side, going from Raeford, left side coming from Fay-etteville. That is what is known as Raeford Puppy Creek Road. House is just short distance from road. I was home on 12 August, 1927. Was there about 2 o’clock. I saw Hector Graham and his wife pass there in an automobile. Hector was sitting on side of car next to my house. His wife on other side. Hector was driving. I was sitting on front piazza, just below my door, i. e., on side next to Raeford. I saw Mr. Johnson. He was at the lot. I knew he was in the lot, but I did not know at what point. I saw him when he was called out from the lot. Hector called him. He had just stopped. Car turned a little into the other road, but stopped. The engine of car was somewhere about the stump. I could not see driver of car when it stopped. I could see the other person in front sitting. The other person was Hector’s wife. I could hear the engine of car to the house. If the engine of ear stopped, I did not pay any attention to it. Hector called Mr. Johnson. I heard the Paul part; I don’t know whether he Mr.’d him or not. Mr. Johnson went to car when Hector called. Mr. Johnson had his hands in his pockets. He went up the Mail Road to car. When he went up to car he put his foot on running board. I could see his shoulders. Could not see any part of him except his shoulders. I did not see anything happen. The next thing I heard haj>pen, I heard pistol fire, and right after the pistol fired there was a little racket made, a noise like a child, and then another pistol fired; it was just all done right at once, almost. Pistol was fired at car. I could see Hector’s wife all the time. I could not see her move. I could have seen her if she would have moved. I don’t know whether Hector’s wife shot pistol or not, but I did not see her move. Mr. Johnson came running, staggering back around the car and fell. Mr. Johnson wasn’t at car any time before shot was fired — just a few minutes. I never could estimate time. There was nothing between car and my house to obstruct the view. Car drove off immediately after pistol fired; car was going when Mr. Johnson fell. I never heard any fussing at car. I never saw any fight. I never saw Mr. Johnson move from the position he was in at car until pistol fired. He was there, looking right at the car and them.”

The prisoner testified in part as follows: “I knew Mr. Paul Johnson all his life. I know all of the family. I worked with his father. I had known Mr. Paul 27 or 28 years. Mr. Paul Johnson and me, nor any of his family, ever had any trouble. I never had any ill-feeling towards him or any of his family. I saw Mr. Paul Johnson on 12 August. I first saw him on that day at Mr. Fred Johnson’s, mill, early that morning. . . . I left Mr. Curtis’s to go home, and going from Mr. Curtis’s to *463my borne I must travel tbe Puppy Creek Eoad to tbe crossing of tbe Mail Eoad at Mr. Johnson’s place, turn in at tbe Mail Eoad to go to my bouse. I did not know that Mr. Paul Johnson was at tbe farm until I got there. I did not expect to see him at all. "When I saw Mr. Paul at tbe barn, I stopped to see if I could get some work from him and see if be wanted some corn. I bad sold Mr. Fred sixteen to seventeen bushels of corn and I wanted to sell some more corn. When I saw Mr. Paul at tbe barn I stopped and called (Hey, Mr. Paul), and be came to tbe car immediately. He walked up on tbe left side of tbe car where I was sitting. My wife bad a bag in tbe car, and when be came up to tbe ear be asked what was in that bag. My wife replied, ‘I have been off working.’ I bad a walking stick in tbe car between tbe back of front seat and coat rack. Mr. Paul grabbed tbe stick and said, T will learn you bow to call me Paul .’ Mr. Paul took tbe stick and began bitting me. He struck me side of tbe face and on tbe back of tbe bead, and I grabbed tbe pistol and shot him. Tbe reason I bad tbe stick, I bad hurt my foot and bad been using tbe stick for a walking stick.” Stick produced in court and identified as tbe stick Mr. Johnson bad bit him with. Stick seasoned dogwood, about tbe usual size of a walking stick. “It was not broken before Mr. Paul struck me with it. He struck me right there, on that bone (indicating cheek bone), and made that big scar and be bit my bead up there and up there (indicating about tbe bead). I shot him while be was beating me. I wouldn’t have done it for nothing. I was just knocked addled.”

Q. Why did you shoot Mr. Johnson? A. “I don’t know. I just naturally was addled. He knocked me and assaulted me with tbe stick, and I hardly knew what I was doing, and then whenever be bit me be knocked every bit of tbe water in me out.”

Q. Did you stop there for tbe purpose of having any fight or altercation with Mr. Johnson? A. “Not a bit in tbe world. I never did have no difficulty; I liked them all. I never did have no trouble with none of them at all. That is tbe truth. I always liked them all. I worked with them all. When I left there I went home. It’s a wonder I did not tear up the car going home. I didn’t know what I was doing; I was hurting so bad. I did not stay at home no longer than to open tbe door and get out. I went to Fayetteville on Monday morning and surrendered to Sheriff McGeachy. I tried to make my way there before, but could not get there. A colored man by tbe name of Bell, who lives about nine miles from Fayetteville, carried me to Fayetteville. I went to bis bouse and asked him to carry me to Ealeigb or Fayetteville so I could surrender, and be carried me to Fayetteville. When I surrendered to Sheriff McGeachy my face and eye were swollen, and tbe sore and *464bruises were on. my face where Mr. Johnson struck me. The skin was broken.” Witness at this time shows scar across his cheek bone to the jury. Scar about two and one-half inches long, straight across the cheek bone.

Laura Graham, the prisoner’s wife, testified: “I was at Mr. Curtis’s 12 August. Was there to help wait on his wife. My husband came there that day. I left there with him. When we left there we went down the highway leading towards Raeford and turned and detoured and came around by Mr. Johnson’s mill, and Mr. Paul Johnson’s farm. That was the only way we could travel going home. The main highway was under construction. I saw my husband when he came to Mr. Curtis’s. He was driving a car. Did not see him have any pistol. While he was there did not say anything to him about having broken into my trunk and getting a pistol. Only thing I said to him, ‘I will be ready in a few minutes.’ We then left there as soon as I could lay the baby down and give the lady some milk. In going from there home we would go by Mr. Johnson’s farm. Saw Mr. Johnson when we passed the farm. He was at the shelter when I first saw him. My husband stopped the car and called Mr. Johnson. Mr. Johnson came to car on left side. My husband did not say anything to Mr. Johnson as he came to car. When Mr. Johnson walked up to the car, he reached over and looked into the car, and said, What is in that bag there?’ and I just said it was my bag where I had been off on some work. Mr. Johnson then says to my husband, Hid you call me Paul?’ and Hector replied, ‘Yes, sir, I did; isn’t that your name?’ Mr. Johnson says, ‘You., don’t you ever call me Paul any more,’ and he grabbed the stick out of the car and struck him. This is the stick that he struck him with. The stick was standing behind the seat in the coat rack. Don’t know how many times he struck him. It frightened me so, I threw up my hand and began crying. Was not looking at my husband when he shot him. I heard the shots; could not say how many, I was so frightened. The licks and shooting occurred at the same time. As soon as shooting occurred my husband drove off immediately. Didn’t know when we left there how badly Johnson was hurt. We went direct home. Did not hear my husband make any statement about Mr. Johnson that day. Have never heard him make any threats against him. He always spoke nice about him to me. I did not know of any trouble between my husband and Mr. Johnson.”

Dr. G. W. Brown, the coroner, testified that he had examined the body of the deceased and had found two wounds — one in the left hand, indicating powder burn, and the other between the second and third ribs half an inch above the base of the heart. Both were pistol wounds, and the latter was fatal. The deceased died instantly.

*465Tbe evidence is voluminous, but tbe foregoing is sufficient to give tbe background of tbe legal propositions referred to in tbe charge. Other evidence is set out in tbe opinion. Testimony offered in corroboration, or in support or disparagement of character is omitted.

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

Robinson, Downing & Downing for prisoner.

Adams, J.

In tbe outset of bis argument tbe prisoner impeaches tbe legal sufficiency of tbe verdict and judgment on tbe ground that tbe trial court was without jurisdiction to bear and determine tbe question of bis guilt. Tbe position is predicated on Article IV, sec. 11, of tbe Constitution. It is therein provided that tbe General Assembly may by general laws provide for tbe selection of special or emergency judges to bold tbe Superior Courts of any county or district when tbe judge assigned thereto, by reason of sickness, disability or other cause, is unable to attend and bold said court, and when no other judge is available to bold tbe same, and that such special or emergency judges shall have tbe power and authority of regular judges of tbe Superior Courts, in tbe courts which they are appointed to bold. Accordingly, tbe General Assembly at tbe session of 1927 passed an act authorizing tbe Governor to appoint four special judges, two from tbe Eastern and two from tbe Western Judicial Division, whose term should begin 1 May, 1927, and end 30 June, 1929. Judge Townsend was appointed one of tbe special judges from tbe Eastern Division and was thereby vested with “all tbe jurisdiction which is now or may be hereafter lawfully exercised by tbe regular judges of tbe Superior Courts which they are appointed or assigned by tbe Governor to bold.” Public Laws 1927, eb. 206. On 5 May, 1927, Governor McLean assigned Judge Townsend to bold tbe term at which tbe prisoner was tried, reciting in tbe commission that “by reason of sickness, disability, or other cause, tbe regular judge assigned to bold said term is unable to attend and bold tbe same.”

We find in tbe record a certificate, dated about a month after tbe trial bad been concluded, that tbe resident judge bad been “available to bold tbe court.” This Court has jurisdiction to review upon appeal any decision of tbe courts below upon any matter of law or legal inference (Const., Art. IV, sec. 8); but it cannot consider a paper which, unrelated to tbe trial, purports upon its face to have raised an issue of fact after tbe adjournment as to tbe recitals set forth in tbe commission given tbe presiding judge.

*466At no time during bis trial did tbe prisoner assail tbe validity of tbe commission; bis challenge first appears in bis assignments of error. In S. v. Hall, 142 N. C., 710, 713, it is said tbat jurisdiction is never applied to any question touching tbe existence of tbe court itself and is not conferred until tbe court, designated to exercise it has been brought into being according to tbe mode prescribed by law. If it be granted tbat tbe prisoner intended to say, not tbat tbe court, if legally organized, bad no jurisdiction of tbe crime, but tbat it was called and organized without authority of law, bis position is none tbe more favorable. In bolding tbe court Judge Townsend served in tbe capacity of a judge de jure; pursuant to constitutional and statutory authority be was in tbe exercise of bis office as a matter of right. But if be bad been judge de fado as defined in S. v. Lewis, 107 N. C., 967, bis duties, discharged under color of a valid appointment, would have been conclusive, not as to tbe State perhaps (33 C. J., 971, sec. 101), but as to tbe public and tbe rights of third parties. In People v. Staton, 73 N. C., 546, tbe Court observed, “And we think it may now be considered as settled by our own decisions and by tbe English and American cases and by tbe text-writers, tbat there is no difference between tbe acts of de factor and de jure officers so far as tbe public and third persons are concerned.” Tbe result is tbat in any view of tbe case tbe prisoner’s first exception must be overruled. Burke v. Elliott, 26 N. C., 355; Gilliam v. Riddick, ibid., 368; S. v. Speaks, 95 N. C., 689; S. v. Turner, 119 N. C., 841; S. v. Hall, supra; S. v. Wood, 175 N. C., 809; S. v. Montague, 190 N. C., 841.

Tbe second exception relates to tbe testimony of tbe witness Evers. He said tbat about ten days before tbe homicide tbe prisoner bad told him tbat tbe deceased “had bad some talk about him, and be was going to get even with him.” It is contended for tbe defense tbat these words do not import malice, and tbat without them there is no evidence of such malice as tends to establish premeditation and deliberation. Tbe prisoner’s declaration was in tbe nature of a threat; hence tbe testimony was not incompetent. In S. v. Foster, 130 N. C., 666, evidence of a threat made a month before tbe homicide was held admissible as tending to show malice and as “some evidence” of premeditation and deliberation. If tbe evidence was competent for any purpose there would have been error in excluding it. S. v. Burton, 172 N. C., 939; S. v. Johnson, 176 N. C., 722; S. v. Baity, 180 N. C., 722; S. v. Vaughan, 186 N. C., 759.

Mrs. Doss Bowen was permitted to testify tbat a short time before tbe homicide tbe prisoner took a pistol from bis pocket in her presence and in tbe presence of bis wife, whereupon tbe latter addressing her husband remarked, “You broke in my trunk' and got it.” This was *467objected to; but the objection was properly overruled. Although the wife is not a competent witness against the husband in the trial of a criminal action, her declarations made in his presence, and in the presence of a third party, and naturally calling for some action or reply if untrue, he remaining silent, are admissible in evidence. S. v. Record, 151 N. C., 695; S. v. Randall, 170 N. C., 757, 762; S. v. McKinney, 175 N. C., 784; S. v. Evans, 189 N. C., 233. It is suggested that without regard to this principle the wife’s statement had no reference to the homicide and was made, if at all, before the commission of the crime. The evidence was competent in that it tended to show the prisoner’s possession of the pistol a short while before he came to the farm and called the deceased to the car, for at this time the prisoner had not testified or admitted the homicide.

The deceased was killed about 2 o’clock on Friday; on Monday morning the prisoner surrendered himself to the sheriff of Cumberland County. The State offered evidence to show that search had been made for the prisoner immediately after the death, and thereafter without break until the first of the next week. The purpose was to show flight, and flight is a circumstance to be laid before the jury as having a tendency to prove guilt, although as his Honor correctly instructed the jury, it is not evidence of premeditation or deliberation. S. v. Foster, supra; S. v. Tate, 161 N. C., 280. Fruitless search may be shown by laymen as well as by officers of the law.

It is urged for error that his Honor failed to state the evidence in a plain and correct manner and to declare and explain the law arising thereon. C. S., 564. In reference to the first of these clauses it may be said that recapitulation of all the evidence is not demanded and that the requirements of the statute in this respect are met by presentation of the principal features of the evidence relied on respectively by the prosecution and the defense. An omission from the charge of an important feature of the evidence should be called to the attention of the court before the verdict is returned. This opportunity was given the prisoner’s counsel, the judge inquiring near the close of the charge whether he had overlooked any of the contentions. Only one was suggested, and it was submitted to the jury. S. v. Grady, 83 N. C., 643; S. v. Pritchett, 106 N. C., 667; Boon v. Murphy, 108 N. C., 187; S. v. Ussery, 118 N. C., 1177.

Concerning the necessity of declaring and explaining the law it has been held in quite a number of eases that nothing more is required than a clear instruction which applies the law to the evidence and gives the position taken by the respective parties as to the prominent and controlling features which make for the ascertainment of the facts. ¥e adhere to the well settled principle so clearly enunciated in Merrick’s *468 case that a judge in bis charge to the jury should present every substantial and essential feature of the case embraced within the issue and arising from the evidence; and we would not hesitate to declare any material departure therefrom substantial cause for a new trial. S. v. Merrick, 171 N. Cl., 788, 795. But we have not discovered in this case any such disregard of the statute as calls for the application of this salutary doctrine.

The seventh and eighth exceptions are so obviously untenable as to require no comment; as to the ninth we find no evidence to which the doctrine of cooling time should have been applied; and in the instruction as to retreating to avoid a menaced encounter we have found no error of which the prisoner can reasonably complain. The eleventh and twelfth exceptions also are without substantial merit. In the recital of the prisoner’s contentions the cause he assigned for his conduct after the homicide and for leaving home was clearly stated. If there was error in setting out the contentions which are the subject of the thirteenth, fourteenth and fifteenth exceptions, it should have been pointed out when corrections of this character were requested by the court. S. v. Ashburn, 187 N. C., 717; S. v. Reagan, 185 N. C., 710; S. v. Little, 174 N. C., 800.

The exception last to be considered was taken to the court’s refusal to withdraw from the jury the question of murder in the first degree. It is argued that there was no evidence of premeditation and deliberation; but we cannot concur. The evidence of self-defense was at least subject to doubt. The prisoner said that when he arrived at the farm the stick with which the deceased assaulted him was “in the car between the back of the front seat and the coat rack.” His wife testified: “I did not see the stick any more after the shooting until after I got home. Next time I saw it, it was between the coat rack and the seat, the same place it was before the shooting.” This, and evidence of the threat, of the way in which the pistol had been procured, and of circumstances explained by two eye-witnesses, if believed by the jury, formed a sequence of incidents fully warranting the finding that the death of the deceased was the result of a preconceived purpose. S. v. McCormac, 116 N. C., 1036; S. v. Dowden, 118 N. C., 1145; S. v. Daniels, 164 N. C., 464; S. v. Lovelace, 178 N. C., 762.

In reviewing the several assignments of error we have not been inadvertent -to the gravity of the judgment. In the interest of human life we have examined the exceptions, the evidence, the instructions, the entire record, and we are unable to see wherein the prisoner has just and legal ground for demanding a new trial.

No error.