STATE v. HERMAN CASEY.
(Filed 27 June, 1931.)
1. Criminal Law TL e — Upon appeal in criminal cases the Supreme Court may review only matters of law or legal inference.
Upon appeal in a criminal case the Supreme Court has jurisdiction to review only matters of law or legal inference. Article IV, section 8.
2. Criminal Law I j — Upon a motion to dismiss only the evidence favorable to the State will he considered.
Upon a motion to dismiss a criminal action only the evidence favorable to the State will be considered, and the motion is properly denied if there is any sufficient evidence upon the whole record of the defendant’s guilt.
3. Criminal Law I h — Competency, admissibility and sufficiency of evidence is for court, weight and credibility is for jury.
The competency, admissibility and sufficiency of the evidence is for the court to determine, and the weight and credibility is for the jury.
4. Homicide B a — Testimony in this case held competent as tending to show motive, malice, premeditation and deliberation.
Where in a prosecution for murder there is evidence that the defendant was engaged in cutting and hauling lumber on the land of another, and that the company for which the deceased worked stopped payment of a check given the defendant for certain lumber on account of a dispute as to the ownership of the timber, that the defendant had been told that the *186deceased was responsible therefor, and that the defendant had shot the deceased and taken a sum of money from his person and then put the body in the deceased’s car and burned them: Helé, testimony of threats made by the defendant to the effect that he was going to get his money one way or another, is competent under the evidence in this case as tending to show motive, malice, premeditation and deliberation, although the threats were not directed specifically against the deceased.
5. Criminal law G i — Testimony that pistol found in defendant’s room had been recently fired held competent under facts of this case.
Where there is evidence in a prosecution for murder that the defendant shot the deceased twice with a pistol, poured gasoline on his body and his car and set fire thereto, that the defendant then returned to the house where he was boarding, and bathed and changed his shirt, which had blood on it, and that a pistol was found in the room of the house where he had been, and that two bullets had been fired therefrom, and the pistol is identified as the one which was in defendant’s possession: Held, testimony of witnesses, one of whom had run paper through the barrel in the presence of the others, that the pistol had been recently fired is competent, when taken in connection with other evidence in the ease, as a circumstance to be considered by the jury, the probative force being for their determination.
6. Homicide G a — Evidence held sufficient to he submitted to the jury in this case.
Where there is evidence that the defendant in a prosecution for murder held a grudge on account of the stopping of payment on a check given him in payment of certain lumber, that he had been informed that the deceased was responsible therefor; that he was seen near the place of the crime at or about the time of its commission; that a pistol in his possession had been recently fired, with testimony of an eye witness that the defendant had shot the deceased and then taken a sum of money from his person and burned his body, and that a key belonging to the defendant had been found at the scene of the crime, together with tracks of a tire similar to those upon the defendant’s truck, with other incriminating evidence, is held: sufficient to be submitted to the jury and to sustain a verdict of murder in the first degree.
7. Homicide H c — Where there is no evidence of manslaughter the failure to charge the jury in regard thereto is not error,
Where there is sufficient evidence in a prosecution for murder to justify a charge on the aspect of manslaughter it is error for the trial court to fail to do so, but in this case the record failed to disclose any evidence of manslaughter and the failure of the trial court to instruct the jury in regard thereto was not error.
8. Criminal haw I g — Charge fully covering aspect of alibi relied on held not prejudicial for failure to use specific word “alibi.”
Where the charge of the court fully states the contentions of the defendant that he was not at the scene of the crime at the time of its commission, and that he was not guilty of the offense charged, the instructions will not be held for prejudicial error on the defendant’s exception because of the failure to use the specific word “alibi” in regard thereto.
*1879. Criminal Law G j — Testimony of accomplice, if believed by jury, is sufficient for conviction.
In this case there was no evidence that the State’s witness accompanying the defendant at the time of the commission of the crime was an accomplice, and no request for instructions was made in regard to his testimony, but the unsupported evidence of an accomplice, if believed by the jury, is sufficient to convict.
10. Criminal Law L c: J d — Appeal to the Supreme Court stays all proceedings in lower court and motions before it thereafter are coram non judice.
The effect of an appeal is to stay all proceedings in the lower court pending the disposition of the appeal, and where, after appeal bond has been given, the defendant makes motions before the Superior Court judge for a mistrial for prejudice of jurors and for a new trial for newly discovered evidence, the motions are coram, non judice. C. S., 4654.
Appeal by defendant from Devin, J., and a jury, at September Special Term, 1930, of Lenoie.
No error.
The defendant, Herman Oasey, was tried upon a bill of indictment charging him with murder in the first degree of James 0. Causey. A verdict of guilty of murder in the first degree on the bill of indictment was returned by the jury, and the defendant was thereupon sentenced by the court below to death by electrocution.
The evidence was to the effect that James 0. Causey was from Suffolk, Va., but was living in Goldsboro, N. C., prior to 3 July, 1930, and was working for the Atlas Plywood Corporation. It had bought out the Utility Manufacturing Company, and he was in charge of the logging-operations in the woods. Causey drove a Hudson coach, belonging to the company. The defendant Oasey knew Causey and who he was working for. Defendant Casey was hauling some hogshead stave timber during the summer of 1930, shortly before 3 July, 1930, off the land of one John H. Sutton. There was a controversy between Sutton and the Utility Manufacturing Company (then owned by the Atlas Plywood Corporation, located at Goldsboro, N. C.), over who owned the land the timber was cut off of. Some of this timber was sold by defendant Casey to Goldsboro Lumber Company, at Dover, N. C., some three or four weeks before 3 July, five and three-fourths cords amounting to some $28.75. The Goldsboro Lumber Company was notified by one E. H. Graham, an officer of the Atlas Plywood Corporation, to stop payment, which was done. Defendant Casey, as testified to by one Blandford, connected with the Goldsboro Lumber Company, on 3 July, the day it is alleged Causey was killed about eleven-thirty or one-thirty, was trying to get the money, claiming it was coming to him and that he understood bond had been executed for the timber. He told John Bryant, who he was hauling lumber for, on the morning of 3 July, having delivered *188some timber to the Goldsboro Lumber Company at Dover, N. C., where defendant left him about eleven o’clock, that be got balled up with the Goldsboro Lumber Company about $35.00.
E. LI. Graham testified, in part: That he knew defendant Casey. “The latter part of May or first of June. He came over there to see about some money that had been withheld at Goldsboro Lumber Company. He did make a statement in reference to it. Q. What was it ? (Defendant objects unless it refers to Mr. Causey.) He said T am going to have my money, somebody is going to pay me.’ (Defendant objects to answer and asks that it be stricken out; overruled; defendant excepts.) I did refuse to pay him the money and did not permit him to be paid. I was manager. The money that I am talking about was to be paid at Dover. The litigation was between Utility Manufacturing Company and Mr. Sutton, about the timber. ... I don’t know whether Mr. Casey knew Mr. Causey or not. As I recall it, I told Mr. Casey that Mr. Causey had charge of the logging operations.”
Luby Underwood, testified, in part: “While we were hauling from Mr. John H. Sutton’s place Mr. Casey had to stop hauling. There came a man down from Goldsboro. Mr. Casey was.with me at the time. Mr. Casey was with me and we were coming down in woods riding in the truck together. It was in June. (Defendant objects to this; overruled, and the defendant excepts.) We come on down the woods with a load and he was going to Dover to get some chewing tobacco and he got out on the road and a car was standing there, over there to the left at the bridge and the man got out of his car and asked if he was Mr. Casey and Mr. Casey said, yes, and he wanted to know of Mr. Casey where he was getting his timber from. (Defendant objects and excepts to above testimony; overruled; exception.) This gentleman asked him who he was buying his timber from and Mr. Casey told him from Mr. John H. Sutton, and he wanted to know how much he had gotten out of there and Mr. Casey told him he did not know. (Defendant objects and excepts to above; overruled; exception.) The gentleman in the car, the car was from Goldsboro, but I could not swear where the man was from, he said to Mr. Casey, ‘Don’t get any more timber out of that piece of woods down there and not to cut any more out of there.’ He pulled out some map and begun to show Mr. Casey about the map, and Mr. Casey stopped and did not get any more out of there and he quit and moved over to Mr. Tilgham’s tract of land. (Defendant objects and excepts; overruled, and exception.) This man was driving a large car, I don’t know the name of it. . . . That night we come to town and he paid us but not all. His talk was that this man owed him this money at Goldsboro where he went to see, and the way he talked, said *189The G-d-son of a bitch, he was going down there, said wherever he met this G- d- son of a bitch, wherever he met him he was going down with him.’ (Defendant objects and excepts to above testimony; overruled; exception.)”
Peter Brown testified, in part: “The next week we worked at the John H. Sutton place, still working for Mr. Oasey sawing stave timber. Something happened while we were working there that stopped us working on the John H. Sutton place on Friday night of that same week. Q. Did Mr. Oasey tell you why you stopped working there? (Defendant objects in apt time to all this line of testimony; overruled; defendant excepts.) A. Mr. Oasey told me the next week that they objected to him cutting and hauling any more of that timber out of there. The next week we worked on Mr. Pete Tilgham’s place, cutting stave timber. ... A. He said Friday when he left that he had to go to Dover, that somebody was going to pay him his money. (Defendant moves to strike out this evidence; overruled; defendant excepts.) . . . On Monday he stated that he would rather be laying flat of his back in the sunshine with his toes bound together than for anybody to beat him out of his labor. (Defendant moves to strike out above; denied, and defendant excepts.)”
John Anthony Brown testified, in part: “He said he went to Golds-boro Monday to get our money. On Monday he carried us to the woods and put us to work and told me he was going to Goldsboro to get the money. (Defendant objects; overruled, and exception to the above.) He came back that night and paid us off across the street yonder and told us he borrowed the money from the company at Dover. He told us about his money being stopped. He told me on the way going to Greene County ‘You just as well be dead with my toes turned up to the sun as to be working and can’t get our labor.’ (Defendant objects; overruled; exception.)”
Thurman Morris testified, in part: “It was this summer. . . . Q. Did you hear Herman Casey make any statement in reference to any money that was held up, whether he had been to get his money? (Defendant objects; overruled; defendant excepts.) I went down there one afternoon and I heard him say a fellow in Dover owed him some money and he went for it and could not get it, and he said Damn if he did not aim to have it on some terms.’ (Defendant objects; overruled and exception.)”
C. S. Cornwell, testified, in part: “Yes, I know Mr. J. C. Causey, had known him about 15 years. I last saw him on the morning of 3 July; it was about 10 o’clock that he left the office. I do know that he had business at what is known as Caswell Camp, near Kinston, on that *190day. When be left tbe office be was driving a Hudson coacb. Yes, I bave seen tbe car tbat was burned and I know of my own personal knowledge tbat tbe burned car was tbe car tbat was driven by Mr. Causey on tbat day. Tbe car belonged to tbe company.”
Henry West testified, in part: “I live about a mile and a half from where tbe car was burned, out towards Kelly’s Mill. I knew Mr. Causey when I saw bim, and I saw bim on 3 July; at tbe time I saw bim be was going in tbe direction of where tbe car was burned. He was driving a Hudson car; it was about 11:30. I saw smoke in tbe direction of where tbe burned car was found about 12 o’clock tbat day, but I could not say whether it was that car burning that I saw the smoke from, or not. There was no other fire around there tbat day I know of.”
Decatur Nobles testified, in part: “I knew Mr. J. 0. Causey when I saw him, had known him since November. I saw bim on Thursday, 3 July, be passed my house driving a Hudson coacb, going, towards Oak Bridge, around toward Route No. 10 from my house; be was going toward tbe scene of tbe accident when I saw bim, toward where tbe car was found burned. As near as I could guess at it I would say it was between 11:00 and 11:30. I never looked at the clock to see tbe exact time. I had just gone to the bouse from topping some tobacco, and I later saw the smoke from the fire. I think it was about half an hour after I saw Mr. Causey pass before I saw the smoke. That is just guessing. Right around 12 o’clock is as near as I can get at it tbat I saw the smoke. . . . Vas present on the 4th where tbe car was burned. . . . Tbe front of the car was about 20 or 25 feet from this little road that crossed tbe tram road. I saw some bushes right side of tbe car it looked like it had been beaten out with a brush or something of that sort. Tbat was on the left of tbe car next to tbe Neuse road and on tbe side away from tbe tram road, west approximately from the ear.”
Jerry Sutton testified, in part: “I was at home on 3 July. I worked in tbe tobacco patch, about 50 steps of tbe road, was about 50 yards of the road when Mr. Causey passed by. I knew Mr. Causey. It was about 11:20 or 11:30 when Mr. Causey passed; be was driving what looked to be a Hudson coacb, but I could not swear as to tbe make of tbe ear. It looked like the same car be bad been driving since be had been coming down there. When he passed be was running 35 or 40 miles an hour. It is a pretty good road by my bouse, at tbat time they had just drug the road and bad piled a lot of loose dirt in tbe middle of the road and it was dry and it was pretty tough at that time.”
Milton Vood testified, in part: That on 3 July, be was staying with bis mother near Fort Barnwell. “I got up with Mr. Herman Oasey *191at Sam Smith’s house. I was at Sam Smith’s house and Mr. Casey came along and I waved him down and asked him how his truck drove and asked him how about getting a job with him, and he said he did not know, to come with him and he would let me know later. . . . After he turned off on this road he drove down a mile or more down to a little by road, after a while he came to a little small piece of woods, and I asked him where he was going, and he said he was going down through the islands. After a little while he got to a railroad, and I looked up ahead of me just before we got to the railroad and saw this big car coming. Mr. Casey drove up to the foot of the railroad and stopped his truck and got on the ground and by that time Mr. Causey in the car ahead of us had stopped his car. The railroad was between them and Mr. Causey could not pass this truck. Mr. Casey was already on the ground, and he walked around on the right-hand side of Mr. Causey’s ear, and Mr. Casey reached in his pocket and got a black looking pistol from his pocket. I could not swear as to the pistol (shows witness pistol). This looks like the pistol. I remember this little piece here on the side of it. He had it about this close to my face (indicating). Mr. Casey took his pistol out and shot Mr. Causey twice and Mr. Causey’s head fell backwards, and after he was dead he come back to the truck where I was and he told me if I told it he-would kill me if I was the last one on God’s earth, and I told him I would not tell it, and he put his pistol back in his pocket and went back to the ear and opened the car and got Mr. Causey around the shoulders and dragged him on the ground and got down kinder on his knees and searched all his pockets and pulled some money out of his right-hand pants pocket; I don’t know how much money he got;-1 saw money sticking out of the edge of his hand, it was paper money. He pulled him out the right-hand side of the car. At that place it is little fine old dead looking grass along down where- he pulled him out. It was right on the edge of the road, right at the edge of the car. After he pulled him out and searched him and got what he wanted off of him, he took him up in his arms and after two or three lunges he got him back in the car. He got him in the back seat, but what position he laid him in the back seat I could not see; he got in the car and backed it off in the woods and come back to the car and got a pint bottle and he goes behind the car and then comes to the right-hand side of the car and raises the hood up, and when he gets up he has a pint bottle of gas and he opens the door of the ear and pours over half of the gas on Mr. Causey and strikes a match to him and the fire blazes up and the rest of the gas he poured on the car and struck a match to that; and he came back to the ear and got up in the truck and drove back down the road. He came off where this *192other road comes in. He started to turn around but his mind changed and he never turned around, and he went down to Jasper Tyree’s filling-station and asked for gas but he did not have any gas, and then he drove off on down by the oak bridge and after he gets to a little road that turns off from the highway after you cross the bridge he turned around and comes back the same way he went before except as he got right to the car instead of turning off this little piece of woods road he went around another road. When he went across the oak bridge and turned around and came back he went right back in by Jasper Tyree’s filling station, the same way he came out. He passed the same little road he came out of from the ear, he went up that road a half mile or more, then he turned off to the left and came back into this old road lying out field, and turned back in by this car, and stopped and broke a little sweet gum bush and put out some fire around the car. . . .We went down the Greenville highway and turned off to the left on a dirt road and went 5 or 6 miles, and he came to where he had his washing done, and he got out and went up on the porch. . . . He asked me to draw him some water in a tub, and I drawed about half a tub full and he kept talking about he was so cold he did not think he could take a bath. I hope him carry the water in the tin tub in the room, and when he come out from his bath he had on a clean shirt. He never changed anything else that I know of. . . . Then he drove on out by the Greenville fork and he stopped at the filling station and called me over behind a Whippet car and tells me ‘Look here, don’t think this will be the last time, I will see you, I will see you sooner or later, if you ever tell it you will never tell anything else’; and I told him I would not tell it, and he told me what to tell if they got me up on the stand. He said, ‘You get up there and tell that we come through those woods and saw this car burning and that the top had fallen in and that we got out of the truck and looked at the car and saw the gas tank had not bursted and went on.’ He said ‘you better stick to that and you better not tell anything else.’ . . . The detective also told me if I knowed anything to tell the truth about it. I was guarded while in jail here because I told the truth on the man; I knowed his brothers would get me. Yes, sir, the first statement I made about this thing was that Mr. Oasey did not have anything to do with the killing and the statement that I made to those men in the jail in Wilson was that Mr. Casey did not have anything to do with it. ... I think it was pretty close to 1:30 or 2 o’clock when we got there. I have not said he set the car afire at 11:30 o’clock. I have heard what the other witnesses said about it. A colored man said he saw the smoke about 11:30. Yes, sir, all the witnesses except me have said the smoke was *193between 11:30 and 12 o’clock. ... I could not say for certain whether there was any blood on Mr. Casey’s shirt; I think there was. I can’t remember every word I testified to before. I don’t know whether there was any blood or not. If I am not mistaken, I said there might be some on his left-hand sleeve, right along here (indicating), between elbow and shoulder. That is' all the blood I remember seeing on Mr. Casey. Yes, sir, I say Mr. Casey took his pistol and shot Mr. Causey twice and dragged him out of the car and placed him on the ground and put him back without any assistance and did not get a drop of blood on him except the little spot on one of his sleeves. I am nineteen years old or somewhere thereabout, I don’t know when my birthday is. . . . None of the officers or anybody has ever told me to tell anything but the truth about this matter. . . . The day I went around this route that Mr. Casey and I took they carried me around there twice. . . . No one forced me to follow the route I did. The last I remember looking at my watch that day was when we come out down there to Mr. Tyree’s filling station, and it was 12 o’clock by my watch. That was the first time and not after we went back in there. My watch was not keeping good time and I would be about an hour or more out of time. I had had it about six months and it was a dollar watch.”
Jap Hornder testified, in part: That he and a party were fishing. He saw two colored men who asked the way to the river road. These colored people had no guns. Two reports of a gun were heard in the direction of Decatur Nobles’, he lived about three-fourths of a mile from where the car was burned, this report was heard between 10 and 12 o’clock.
Numerous witnesses testified that they saw Casey in a Chevrolet truck with Milton Wood. Afterwards identified and admitted by all to be Milton Wood, going towards the burned car, between 11:30 and 12 :30, or about 12 o’clock. That about that time they saw the smoke at the place where the car was found burned the next morning. Some of the defendant’s witnesses put it about 1:00 to 1:30 after the car was burned, that they saw defendant and Wood in the Chevrolet truck.
R. T. Jarman, working for the funeral directors, testified, in part: “I got to the scene of the burned car about 10 :30 or fifteen minutes to II o’clock on 4 July. Mr. Milburn Nobles and Mr. Leo Tilgham went with me. Yes, sir, I saw the defendant, Herman Casey at the scene of the burned car. I heard him make the statement there as I was on the inside of the car at work and he was on,the outside talking to Jasper Tyree and some more people; I didn’t notice particularly who they were. He said he came through there the day before, 11 and 12 o’clock and saw the ear burning and that he got out and went around and looked *194at the gas tank of the car and saw that it had not bursted and that he said ‘Come on boys and let’s go.’ He did not call any names as to who he was talking to. He also said that when he saw the car or when he was leaving it one that he said ‘there was a good car that somebody was burning up to get insurance.’ ”
The identity of the remains of Causey and the ear was undisputed.
R. H. Leath, testified, “I have the title to the car. The motor number is 620519 and the serial number 886499. I have checked those numbers with the numbers appearing on the car and they are the same.”
R. L. Woodard, Jr., who roomed with Causey in Goldsboro, and had an engagement with him, last saw him alive at 7:20 a.m., Causey did not keep his engagement and Woodard went to look for him. He testified, in part: “I did not find Mr. Causey on my trip. Left there and came out on the New Bern highway back to Kinston and from Kinston to Goldsboro; arrived at Goldsboro 5 minutes to 6 o’clock. I came down here after the car was burned and learned that I had passed near where the car was found on 3 July, when I was looking for Mr. Causey. I have not seen Mr. Causey since that morning of 3 July. (Counsel hands witness key rings, keys which have been identified by witness Jarman as having been found in the burned car.) Witness identifies key rings and other personal effects as having been found in the car as articles belonging to Mr. J. 0. Causey, deceased. There is an inscription on the inside of the band ring as follows, ‘M. C. C. to J. C. C., 27 December, 1900.’ That is the (late of Ms wedding. ... I was present in Suffolk, Va., at Mr. Causey’s funeral and was present at the burial; his family, widow and children were present.”
S. C. Cornwell, testified as above, and also testified: “When I saw the car it had the appearance of having been backed off of the woods path, just a cut short and backed off in the woods to the best of my recollection about 8 feet or 10 feet from the path. The car was badly burned up. Yes, I noticed that a right good little area had been burned over there; I would say a half acre or possibly more. When I saw the car I noticed that the right hood of the engine was raised and the gas line to the carburetor was disconnected. • The right-hand hood over the engine, the side the carburetor was on was open.”
Gus Simmons testified, in part: “We three got there about 9 o’clock the next morning, when we got there the cross-ties were burning, but there was no burning around the car at all. ... It looked like around the car there had been some fire fighting around the car there next to the dirt road. . . . There were some little green pine tops laying around there looked like someone had been fighting fire, that is all I saw.”
*195J. T. Dunn, testified, in part: “I knew Mr. J". C. Causey, bad known bim 14 or 15 years. I bad worked witb bim around 12 years. I was working witb bim on 3 July. On 3 July, I was in Goldsboro, tbe Atlas Plywood Company plant is in Goldsboro. Caswell Camp is tbe logging camp tbat belongs to tbe company, and it is out from Kinston, tbe mill itself is in Goldsboro. I was in Goldsboro on Thursday. My attention was first called to tbe fact tbat there was a car burned in tbe neighborhood of Caswell Camp around 11 or 11:15 on 4 July, Friday morning. I went to tbe scene of tbe burned car; when I got there tbe coroner’s jury was there, a good bunch of men were there. ... I was there when tbe key was found something like three or four feet in front of tbe burned car; Mr. Turner picked tbe key up; saw bim about tbe time be picked it up; it looked like a switch key to an automobile; Mr. Turner gaye tbe key to Mr. T. G. Sutton, deputy sheriff; it.bad not been through a fire.”
Mrs. B. W. Beddard testified, in part; speaking of tbe defendant Casey: “He stayed at my home a few days, boarded there. He went there on tbe last day of June, 1930, and rented a room from me. He took bis meals there for some days. At tbe time be was there be was trucking, hauling logs. Tes, I recall seeing bim on 3 July, on Thursday. I saw bim tbat morning about 6 :30 o’clock and fixed breakfast for bim and be ate. I also fixed dinner for bim tbat day but be did not come for it. I don’t know where be was of my own knowledge at tbat time. He spent tbe night of 2 July at my bouse but not tbe night of 3 July, and be did not take supper tbat night at my bouse.”
Paul Huffman testified, in part: “I know tbe roads leading from tbe Dover road down into where this ear was burned. I was in tbat community on 3 July. I was working on tbe road from Mr. Geo. Vest’s to Caswell by Jake West’s; I think it is known as tbe British road. There is another road tbat runs parallel witb tbat road down to tbe river called tbe Neuse road. I know tbe defendant, Herman Casey, when I see bim. I saw bim on 3 July, right at Jake West’s yard; there was not room enough for us to pass each other and be pulled up in Jake West’s yard for me to go by. Tbat is about a quarter of a mile from George West’s. Mr. Casey was going toward Caswell; tbat is tbe general direction of where tbe car was burned, but not on tbe same road. He was traveling in a Chevrolet truck. It was about 20 minutes to 12 o’clock. ... At tbe time I saw Mr. Casey there was somebody witb bim, but I did not notice who be was; I was sorter in a right and I just noticed tbe driver and spoke to bim. . . . While we were down there working Mr. Casey came back off of tbat road, I should say be was gone a little better than one hour, but not over an hour and a quarter.”
*196Mrs. J. C. Coward testified, in part: “I have seen Mr. Herman Casey, have known him when I see him, about one year. I saw him on 3 July. I was sitting at my door and I saw him and a young man on a log-truck going down toward Mr. Nobles’. I know where the car was burned, it is between my house and Mr. Nobles. At the time I saw the truck it was going in the direction the car was burned. When I saw the truck go on it was a few minutes after 11 o’clock, and I saw him when he come back. This same young man was with him when he came back but I did not know who the young man was. When I saw Mr. Casey coming back it was between 12 and 1 o’clock.”
J. C. Coward testified, in part: “I saw him on Thursday, 3 July; I was cropping tobacco; hardly a mile from my home. I got home right after the bell rung for 12 o’clock. When I saw Mr. Casey he was coming from the way the car was burned, going toward No. 10 highway. I was not home that day before 12 o’clock. At the time I saw Mr. Casey I judge it to be around one o’clock, somewhere thereabout. It was somewhere between 12 and 1:30, we are supposed to get one and a half hours at dinner; I could not say just the time. There was a young man with Mr. Casey at the time but I don’t know who he was. I have seen the young man since then up here at the coroner’s inquest and it was Mr. Milton Wood that I saw with him on that day.”
C. C. Beard testified, in part: “I saw another key picked up in front of the car about three or four feet from the front of the Hudson car, where it was burned. The Hudson was backed out from the little road that comes out from the river road out in the woods, I guess about 10 feet from the little road that crosses the railroad, and this key was found between the automobile and the river road. Mr. J. W. Turner found that key. I saw him pick it up. He gave it to Mr. G-. T. Sutton, deputy sheriff. I saw Herman Casey come up there and stayed I reckon 10 minutes and went away and while he was gone the key was found. Mr. Casey came back in 10 or 15 minutes and asked if they had found a key and they told him they had and Mr. Sutton gave him the key I think. If he made any statement about the key I did not hear it. I heard Mr. Casey tell Mr. Evans that he came up there about 12 o’clock 3 July. Mr. Evans asked him in what condition the car was in when he got there and he told him it was on fire but that the fire had not reached the gas tank, and that he said to the fellow who was with him that ‘We had better get. away, the tank has not exploded yet and we had better leave,’ and that they hurried on off. That conversation was after the key was found. ... I saw a jar in the woods out there. I think it was a half-gallon jar; I don’t know what was in it, I did not go to it. I don’t know who has the jar. *197I don’t remember who picked it úp. I remember it being- picked up. I saw it lying out under those bushes. . . . Mr. Casey said he lost it (the key), and he came back looking for it; I know he inquired about it. The best I remember when he was shown the key he said it was his key. Seems like he said he lost his key while walking around there and did not discover it until he got back to his truck. I think the key was handed back to him. It was a perfectly bright key. Mr. Casey took the key and went on to his truck and went off. He said he felt in his pocket and discovered a hole in his pocket and had lost his key out of his pocket.”
Jasper Tyree testified, in part: “I don’t know exactly what time we got there, between 9 :30 and 10 o’clock though. When I got there I saw the burned body in the car and the car was burned up. Mr. Garner had not entered the burned car when I first saw it. From the waist up of the body what was left of the body was in the corner of the back seat with the face down. Mr. Garner turned the body over while I was there. The right-hand side of the hood of the car was raised and the pipe that goes from the vacuum tank to the carburetor was disconnected and a pair of pliers were on the running board. . . .• I also saw the fruit jar that has been referred to; it was laying about 10 steps off to the left, back of the car. I picked it up. It had the odor of gas in it, it was a half-gallon jar. . . . Herman Casey came there right after Mr. Garner left. When I first saw him he walked right úp behind me, myself and Robert Guzzins were sitting down. Mr. Casey walked up there and said, ‘Well it is burned up, aint it’ and he said, ‘I was at this car yesterday right around 12 o’clock.’ At that time none of the officers had come. Mr. Casey said he walked to the side of the car and looked at the gas tank in the back and saw it had not bursted and that he said to Wood, ‘Let’s go, that tank will go up’ and that he got in his car and left; and then he later repeated the same story and stated that he told Wood that he thought somebody had burned the car for insurance. . . . Pretty soon he came back up. At that time nobody had found a key on the ground. Mr. Casey walked up side of me and Mr. Turner was standing next to him, and Mr. Turner stooped down and picked up this key, and Turner said ‘Here is a key,’ and he handed it over to Mr. Guy Sutton, and Casey was standing there and said it was his key, and Mr. Sutton handed it to him. Mr. Turner picked the key up in the path, sorter in front of the car. At that time Mr. Casey had not been over where the key was found while I was there. He did not go in front of the ear at any time until Mr. Turner found the key and he walked up and said it was his key; when Mr. Sutton gave him the key he took it and put it in his pocket and he *198only stayed there a short time then. ... I asked Mr. Casey to let me ride with him and he said all right. That was some distance from Nense road. I went with him to his car where he was parked out on Neuse road, he and I both got in the truck. He did not use the key that Mr. Sutton gave him to start his car; the key was in the switch when he got in the truck. He did not take the key out of his pocket after he left the scene of the fire that day. I rode back to my filling station with him. On the way back Mr. Casey would not talk. I came on down the road about three-quarters of a mile and got up with Herman Johnson and I asked Herman Johnson what kind of truck did he see going through that woods path; Mr. Casey was present, and he said (Johnson) said that he saw a car the day before that go through his field with two white men in it, but that he could not recognize who they were. I don’t remember what Mr. Casey said, he said something but I don’t recall what. Mr. Casey was mighty nervous, he was sitting there under the steering wheel just in this shape (indicating). After we drove off I kept watching Mr. Casey; he would not talk to me. Mr. Casey was in a nervous condition; he was not a normal man; he was nervous and trembling. He made 3 different movements in his car and kept cutting his eye around at me. He did not get up; I kept my eye on him, watching him. The field Herman Johnson was talking about was back over to where the car was burned.”
W. C. Dunbar testified, in part: “Got to the car the morning of 4 July, 12 minutes to 9 o’clock. The car was sitting face to the path, about 10 feet from the path to the front of the car. It was 30 steps from the railroad to the car, 16 steps from the car to where the car stopped and backed back and out back in there. The car was burned up, a total loss. . . . The ground was burned all around'the car and had been whipped out around the car and the fire had turned and gone off side of the track, and during the morning the railroad ties had caught and were burning when I got there. There was no fire about the car when I got there. . . . Will Fowler first saw the pistol that has been shown here. The pistol was seven steps or 21 feet from the right-hand front door of the automobile, laying in the wheel track and a large diamond tread tire had been over it and it was wrapped up in the sand. The pistol was toward the railroad from the car. Mr. Gamer picked the pistol up. I would not let any one bother it until Mr. Garner came and I showed it to him and he picked it up. . . . I don’t recall anybody stating there in the presence of officers or newspaper men that it was Mr. Causey’s pistol. I was there when the pistol was picked up. I don’t know that Mr. Causey carried a pistol in his car. The little gun he used to carry with him in Virginia was a little *199blue steel gun, not an automatic. . . . Mr. Causey was in the back seat of the car. The fire extinguisher was laying kinder under his side, under the back seat. The fire extinguisher was attached to his car the afternoon before; it was on the right-hand side under the front part; I mentioned something to him about it that he had a fire extinguisher in there, and he told me he had it put in there the day before. . . . I noticed the hood of the burned car, the hood on the right-hand side was up and left back when I got there. I noticed the gas line from the vacuum tank to the carburetor had been broken off, or was not connected. This truck track that had been along there the tread looked to be what they call a diamond tread. If I am not mistaken, the car track and the truck track were the same tread, only the truck tracks were larger than the automobile. ... I sent a couple of men around there to look about the surroundings and they found a half-gallon jar, it was 25 steps from the side of the automobile laying between two pines. It had the odor of gas in it.”
N. B. Evans testified, in part: “I observed the tread and approximate size of the track. I have seen Mr. Casey’s truck since that time. We got his truck about 12 miles from here. The tires on his truck are the diamond heavy tread Goodyear, exactly similar to the tracks we had tracked out. Two of his tires are worn and the other two are practically new, and this ground was soft and it made a perfect impression. The road that goes through from the Neuse road, this woods path that goes by where the car was burned, there was signs where the truck had backed practically across the road off of an incline, you could see the impression just as clear as a car could make. ... I also observed tracks of the burned car. When I got there most of these tracks had been put out, but there was a smaller tread tire altogether from the truck track, hut it was also a diamond tread, only one track was larger than the other. You could see where that car was out in the soft dirt backing in the woods off of this little by-road. I would say the burned car was 10 or 12 feet from the road, the front end of the car, was not over 10 feet from the side road. It was backed off in about a 45 degree angle toward the road. . . . When I was talking to Mr. Oasey at the scene of the fire on 4 July he was very nervous, it was noticeable. . . . Mr. Casey said he lived in Greene County at Mrs. Bradley’s. I later went to the Bradley home, I think it was on 9 or 11 July, I am not positive which day. I found this pistol that has been shown here in court at the Bradley home. (Shows witness pistol.) This is the pistol I got at the Bradley home. When I found the pistol two chambers of the pistol had been freshly fired. (Defendant objects to witness testifying as to the condition of the pistol; overruled and defendant excepts.) *200There were some loaded cartridges in the pistol. Two of the chambers had been recently fired, fresh powder burns (witness indicates by use of pistol the freshly fired chambers). I took a piece of paper in the presence of Mr. Garner, the coroner, and run through the barrel and it showed fresh powder, damp, showing that it had been freshly fired.”
T. G. Sutton testified, in part, in corroboration, and stated what Wood said about defendant Casey killing Causey, in - substance what Wood stated in his testimony. “After Wood finished making that statement somebody asked Casey if he had anything to say and Casey said, ‘No, I guess he told it about right.’ ... I took Wood around this route that he said he and Casey went that Thursday; we made two or three trips. . . .We followed the route that he pointed out. . . . He showed us about where both cars stopped and where he picked the man up and told us how he picked him up and put him back in the car arid set the car afire.”
E. A. Garner, coroner of Lenoir County, testified, in part: Got to the burned ear about 9 :00 or 9 :30, 4 July. “I first looked in the car to see what was in there. There was part of a person in there, the back bone, skull and bony parts were there. It was on the back seat of the car in the left-hand corner, face down. The head and shoulders were on the back springs, the head was up in the left-hand corner, looked like it was mashed down in there and the other part of the body was down between where the frames of seat were. Everything about the car that would burn was burned. The right-hand hood of the car was raised and the gas line was disconnected. The wheels of the car were burned and the gas tank flat on the ground. I examined the glass hangers that run the glass up and down and the front ones were down and rear ones were up. I examined further and found some car tracks, a small one practically the size the Hudson car would make and a larger track. The small tire tracks looked to be Goodyear heavy tread tires, I have some just like them. The other was a diamond tread, larger than the other. The Hudson tire had not crossed the railroad, looked like it drove up to the railroad, within four or five feet and then backed back, and in backing-back the wheels kinder wobbled, was the reason you could see the tread so plain, and in some places the big tire treads had passed over the other track. . . . The first thing I found there was this 25 automatic pistol. I found that in about 15 feet to the right in front of the car. Mr. Dunbar pointed the pistol out to me, it was partly covered by dirt a part of the barrel was sticking out. ... At Bradley’s there is a room that comes out even with the edge of the front porch on the right. We got this out of the right-hand room in a dresser drawer. Wood stated to us that Oasey went in the right-hand room *201wben be went there. That is the same room we found the pistol in. I examined the pistol. Q. Did you make any test with the pistol, and if so, wbat? (Defendant objects; overruled; exception.) A. I examined it and there were three or four cartridges in there that had been snapped on and two of the chambers showed that it had recently been fired. The barrel showed that it had been recently shot. I ran a piece of paper through the barrel and got freshly burned powder on it. (Defendant objects; objection overruled; defendant excepts to answer.) . . . Two empty cartridges that fitted this 25 automatic were found on the ground. Some were found in the car that showed they had exploded from the heat of the car. There were no empty cartridges in this 25 pistol. I picked up an empty cartridge up near the railroad. Near the railroad on the side of the railroad showed there had been a good deal of stamping there, that was in that condition when I got there. There was evidence where there had been some walking around near the railroad; I would not say whether walking or scuffling it showed tracks there. . . . Q. I ask you if it was not stated to you there on the scene that this was Mr. Causey’s pistol? A. Mr. Dunbar stated that he thought it was Mr. Causey’s pistol.”
Causey weighed 168 pounds.
The defendant, Herman Casey, denied that he killed James C. Causey. Denied all the material allegations of the State, and testified, in part: “I have never made any threats against Mr. Causey or against any one employed by the Atlas Plywood Company, or any other Lumber Company. I have never owned a pistol and did not have a pistol with me on 3 July. I did not see a pistol out where the burned car was on Friday, 4 July. I have never carried a pistol and have never shot a pistol in my life. ... I did not fight the fire out around the car; I did not attempt to put out any fire. . . . There was not any blood on my shirt when I went over to the Bradleys’ that Thursday. . . . Mr. Graham did not tell me anything about Mr. Causey being in charge of the logging operations. I have seen Mr. Causey three times; I saw him at Wallace several years ago off at a distance, 15 or 16 years ago. I saw him in Neuse River low grounds in February, but I did not speak to him and the day I was in Goldsboro I saw him pass the office. Those are the only three times I have ever seen him in my life.” The defendant further testified: “I left the river road. I then went to the Green-ville fork and bought five gallons of gas; from there I went over in Greene County to Mr. Levy Bradley’s house. I stayed at Mr. Bradley’s sometimes when I did not have any work to do. I would go there and stay a week, his folks had been doing my washing and they had some of my clothes there. ... I got to Levy Bradley’s house and took *202a bath and put on clean clothes. ... I imagine we got to Mrs. Bradley’s about 2 :30. I had not eaten any dinner. ... I ate dinner at Mrs. Bradley’s. ... I went to the Bradley’s once or twice a month. I spent the night there on Sunday night before 3 July.”
Wm. Lang, a witness for defendant, who was in jail with Wood, testified, in part: “Then I went to sleep and about 12 o’clock I woke up and Wood was lying there smoking a cigarette and I got up and lit me one and I said ‘Boy did you burn that man up?’ and he said ‘No’ but that fellow Casey did it, he said he was sitting on the truck and after he shot him twice then he backed his car back in the woods and drawed gas out of the car and poured it on him and set him on fire and that he come back to the truck and said ‘I am good will to kill you,’ and that he begged him not to kill him. Then on Friday night there came two1 gentlemen over to the jail and on Saturday morning Mr. Barnes put me across the cell to the window where I could get air and my window and Wood’s both come out so we could see and talk to each other. Wood told me ‘I have been lying on that man.’ He said ‘When me and Casey came through that woods that car was burning up.’ Before Wood said that I asked him when his trial was coming off and he said Tuesday of next week. Then he said ‘I have been lying on Casey, he did not kill that man and burn him up; when me and Casey came through that woods that car was burning.’ ”
There was other testimony offered to contradict Wood. Four witnesses testified that the general reputation of Herman Casey was bad. Three persons testified to the general reputation of Milton Wood as being good. Fifteen witnesses testified to the general reputation of the defendant, Herman Casey, as being good and four testified to the general reputation of Milton Wood as being bad.
Ruffin Carr testified, in part: “I live in Greene County. I have seen the pistol that was shown here in court at a distance. (Shows witness gun.) This is my gun. The last time I saw this gun was the first or second Sunday in April, Mrs. Mollie Bradley came to my house to borrow it, said somebody was stealing her chickens, and I let her have my pistol. It had .32-long cartridges in it when I loaned it to her. There were four old cartridges and two new ones in the gun. I would not say whether any of them had been snapped or not, but the gun would snap. I had fired the gun on Wednesday night before I let her have it; I shot a dog in the house.”
The defendant made numerous exceptions and assignments of error. The contentions of the defendant will be considered in the opinion, and other necessary facts.
*203
Attorney-General Brummitt and Assistant Attorney-General Nash for the State.
Shaw & J ones for defendant.
GlakksoN, J.
Tbe record contains 236 pages. It took a week to try tbe case and seven counsel for tbe State and defendant argued tbe case to tbe jury. In so important a case, involving life and death, we bave set forth tbe evidence at length. Tbe evidence was direct, tbe testimony of Milton Wood and circumstantial evidence was sufficient to be submitted to tbe jury. Our province is alone to determine — “Tbe Supreme Court shall bave jurisdiction to review, upon appeal, any decision of tbe courts below, upon any matter of law or legal inference,” etc. Art. IY, sec. 8, Const, of N. C.
In S. v. Lawrence, 196 N. C., at p. 564, it is written: “ ‘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 evidence on tbe whole record of tbe defendant’s guilt.’ S. v. Earp, ante, at p. 166. See S. v. Carlson, 171 N. C., 818; S. v. Sigmon, 190 N. C., 684. Tbe evidence favorable alone to tbe State is considered— defendant’s evidence is discarded. S. v. Utley, 126 N. C., 997. Tbe competency, admissibility and sufficiency of evidence is for tbe court to determine, tbe weight, effect and credibility is for tbe jury. S. v. Utley, supra; S. v. Blackwelder, 182 N. C., 899.”
Tbe first contention of defendant is in regard to tbe admission of certain evidence, over defendant’s objection, of tbe testimony of several witnesses concerning statements which tbe defendant is alleged to bave made shortly prior to tbe date of tbe alleged homicide, and none of which it is contended were in anywise directed toward tbe deceased, James C. Causey. This evidence was offered by tbe State for tbe purpose of showing motive, malice, premeditation and deliberation.
“It is never indispensable to a conviction that a motive for tbe commission of tbe crime should appear. But when tbe State, as in this case, has to rely upon circumstantial evidence to establish tbe guilt of tbe defendant, it is not only competent, but often very important, in strengthening tbe evidence for tbe prosecution, to show a motive for committing tbe crime.” S. v. Green, 92 N. C., at p. 782; S. v. Stratford, 149 N. C., 483; S. v. Wilkins, 158 N. C., 603; S. v. Lawrence, 196 N. C., at p. 565.
It is true that tbe threats were not in so many words made by defendant Casey against tbe dead man Causey, but circumstantial. What is tbe setting? Tbe defendant Casey was hauling some hogshead stave-*204timber, shortly before the homicide, off the land of one John H. Sutton. The company, Atlas Plywood Corporation, contended the land the timber was hauled off of belonged to it and not Sutton. Some four weeks before 3 July, the day Causey and the car were burned, Casey sold some of the timber to the Goldsboro Lumber Company at Dover, N. C., amounting to some $28.75. The Atlas Plywood Corporation stopped payment. This embarrassed Casey in paying those working for him. On the day of the alleged homicide he was trying to get the money from the Golds-boro Lumber Company, claiming a bond had been executed for the timber. About 1 June, after the Goldsboro Lumber Company stopped payment on account of notice given it by the Atlas Plywood Corporation, claiming the timber belonged to it, defendant Casey saw one Graham, manager of the company, and he refused to permit Casey to be paid, and Casey said “I am going to have my money, somebody is going to pay me.” Casey was told at the time that Causey had charge of the logging operations. In June Casey was hauling a load to Dover in a truck from Sutton’s place, a car was standing at the bridge, the man was driving a large car and got out of the car and asked if he was Mr. Casey and where he was getting his timber from. Casey told him from Mr. John H. Sutton’s. The car was from Goldsboro and he showed Casey a map. “Don’t get any more timber out of that- piece of woods down there and do not cut any more out of there.” Casey then moved over to the Tilgham tract of land. “That night we came to town, he paid us but not all.” Casey’s talk was that “This man owed him this money at Goldsboro where he went to see, and the way he talked said the G — •— d-- son of a bitch, he was going down there, said wherever he met this G- d-- son of a bitch, he was going down with him.” Several witnesses testified shortly before 3 July that he said substantially. “That he would rather be laying flat of his back in the sunshine with his toes bound together than for anybody to beat him out of his labor.” Another witness testified that Casey said “Damn •if he did not aim to have it on some terms.”
Taking all the statements, we think it was some evidence to go to the jury. These vivid expressions indicated that defendant was harboring a grudge against those who had stopped payment of the $28.75 worth of timber gotten from the John H. Sutton place and also stopping him from hauling any more.
Henry Vest, who lived about a mile and a half from where the car was burned, saw Causey on 3 July driving a Hudson car about 11:30 o’clock, going in the direction of where the car was burned. He saw smoke in the direction about 12 :00 o’clock of where the car was burned. “Vhen I saw the car it had the appearance of having been backed *205off of the woods path, just a cut short and backed off in the woods to the best of my recollection about 8 feet or 10 feet from the path. The car was badly burned up. Yes, I noticed that a right good little area had been burned over there; I would say a half acre or possibly more. When I saw the car I noticed that the right hood of the engine was raised and the gas line to the carburetor was disconnected. The right-hand hood over the engine, the side the carburetor was on was open.
James C. Causey, on Thursday, 3 July, passed Decatur Nobles’ house driving a Hudson coach, between 11:00 and 11:30, going towards Oak Bridge, the scene of the place where he and the car were found burned. About half hour after Causey passed in the car Nobles saw the smoke about 12:00 o’clock. Jerry'Sutton saw Causey driving the Hudson coach, the same car he had been driving since he had been coming down there. This was about 11:20 or 11:30 when Causey passed.
The testimony of numerous witnesses was to the effect that the defendant Casey had a grudge and had made threats against the man in the Atlas Plywood Corporation who was responsible for stopping the Goldsboro Lumber Company at Dover, N. C., from paying him the $28.75 and stopping him from getting any more timber off the Sutton place. Graham had told Casey that Causey had charge of the logging operations. What happened is now told by Milton Wood: “I got up with defendant Casey at Sam Smith’s house. . . . After he turned off on this road he drove down a mile or more down to a little by road, after a while he came to a little small piece of woods, and I asked him where he was going, and he said he was going down through the islands. After a little while he got to a railroad, and I looked up ahead of me just before we got to the railroad and saw this big car coming. Mr. Casey drove up to the foot of the railroad and stopped his truck and got on the ground and by that time, Mr. Causey in the car ahead of us had stopped his car. The railroad was between them and Mr. Causey could not pass this truck. Mr. Casey was already on the ground, and he walked around on the right-hand side of Mr. Causey’s car, and Mr. Causey and Mr. Casey had not said a word, and Mr. Casey reached in his pocket and got a black looking pistol from his pocket. I could not swear as to the pistol. (Shows witness pistol.) This looks like the pistol. I remember this little place here on the side of it. He had it about this close to my face (indicating). Mr. Casey took his pistol out and shot Mr. Causey twice and Mr. Causey’s head fell backwards, and after he was dead he (Casey) come back to the truck where I was and he told me if I told it he would kill me if I was the last one on God’s earth, and I told him I would not tell it, and he put his pistol back in his pocket and went back to the car and opened the car and got Mr. *206Causey around tbe shoulders and dragged him on the ground and got down kinder on his knees and searched all his pockets and pulled some money out of his right-hand pants pocket; I don’t know how much money he got; I saw money sticking out the edge of his hand, it was paper money. He pulled him out the right-hand side of the car. At that place it is little fine old dead looking grass along down where he pulled him out. It was right on the edge of the road, right at the edge of the car. After he pulled him out and searched him and got what he wanted off of him, he took him up in his arms and after two or three lunges he got him back in the car. He got him in the back seat, but what position he laid him in the back seat I could not see; he got in the car and backed it off in the woods and come back to the car and got a pint bottle and he goes back behind the car and then comes to the right-hand side of the car and raises the hood up, and when he gets up he has a pint bottle of gas and he opens the door of the car and poured over half of the gas on Mr. Causey and strikes a match to him and the fire blazes up and the rest of the gas he poured on the car and struck a match to that; and he came back to the car and got up in the truck and drove back down the road. . . . Later Casey came back, stopped and broke a little sweet gum bush and put out some fire around the car.”
These threats to show motive, malice, premeditation and deliberation, were admissible in evidence — the probative force was for the jury.
“A threat to' kill or injure someone, not definitely designated, is admissible in evidence, when other facts adduced give individuation to it so that as it is generally held, the jury may infer'that they were against deceased; but there is authority requiring it to appear to a reasonable certainty that defendant directed the threat against deceased, and holding, if the evidence leaves that matter in doubt, that the doubt must be resolved in defendant’s favor and the threat excluded,” etc. 30 C. J\, part sec. 417, at p. 190. Sec. 418: “Threats made by defendant against a class to which deceased belonged, and prima facie referable to deceased, although his name is not mentioned, are admissible against defendant. Thus threats against policemen, persons of a certain nationality, the members of the family, or any person visiting a certain woman, are admissible, where deceased was a member of the class referred to.” S. v. Wishon, 198 N. C., 762.
The second contention of defendant is in regard to the admission of certain evidence over defendant’s objection, offered by the State, concerning the condition of the pistol found by the officers at Bradley’s home, in Greene County, in the room in which the defendant Casey took a bath. We must get the setting again, and see how far Wood’s *207testimony is corroborated. Milton Wood testified tbat defendant Casey “Took Ms pistol out and shot Mr. Causey twice.” A fisherman bad beard two shots in the direction of the burned car, the time between 10 o’clock and 12 o’clock on 3 July. Now let us consider how far the testimony of Wood is corroborated by the evidence of others: (1) The two shots heard by the fisherman as above indicated. (2) The truck Casey was in stopped just before it got to the railroad, and the big car Causey was in stopped on the other side of the railroad. They could not pass each- other. Witnesses testified to the tracks of the two cars indicating this. Casey got out of the truck and walked around on the right-hand side of Causey’s car, reached in his pocket and got a black looking pistol from his pocket. Wood identified it: “I remember this little piece here on the side of it.” Casey had had the pistol close to Wood’s face. Casey shot Causey in the head twice and his head fell backward, and Casey then came to the truck and threatened Wood. Casey put the pistol back in his pocket. Wood described how Casey took Causey out of the car and put him back. Perhaps the mysterious pistol found near the burned car was Causey’s and fell out of his pocket when Casey took him out of the car and searched him and dragged him. Casey “got in the car and backed it off into the woods.” The tracks of the ear backed was shown on the ground and testified to by all the witnesses, thus corroborating Wood. (3) Casey got a pint bottle and then went behind Causey’s car and then went “to the right-hand side of the car and raised the hood up” gets “a pint bottle of gas,” which he poured one-half on Causey and the rest on the car, strikes a match and sets it afire. The testimony of Jasper Tyree and other witnesses was to the effect that the right-hand side of the hood of the car was raised and the pipe that goes from the vacuum tank to the carburetor was disconnected and a pair of pliers were on the running board. (4) Casey leaves the scene of the burning car, but comes back to the burning car “stopped and broke a little sweet gum bush and put out some fire around the car.” Decatur Nobles testified: He was present the morning of 4 July at the burned car. “I saw some bushes right side of the car; it looked like it had been beaten out with a brush or something of that sort.” Other witnesses testified to the same effect. No doubt the testimony of witnesses as to the time Casey was seen can be reconciled as he was at the car twice. Casey himself told numerous witnesses and Jasper Tyree, the morning of 4 July, when they were at the car “I was at this car yesterday right around 12 o’clock.” (5) One Turner picked up a key in the path, sort of in front of the car where Casey had not been that morning. Casey walked ,up and said it was his key. Casey said it was his truck key and he had dropped it out of his pocket that had a hole in it. Jasper Tyree asked Casey to let him ride in the truck with him when *208Casey was leaving the morning of 4 July. Tyree testified that he did not use the key that was found to start his truck. “The key was in the switch when he got to the truck. He did not take the key out of his pocket after he left the scene of the fire that day.” Tyree rode back to his filling station with him. Tyree testified “Mr. Casey was in a nervous condition; he was not a normal man; he was nervous and trembling.”
Casey was boarding at Mrs. Beddard’s; stayed there the night of 2 July, and on the morning of 3 July she fixed breakfast-for him. She expected him back and fixed dinner for him, but he did not come for it. Nor did he spend the night of 3 July there. He went to the Bradley’s and ate there. Wood testified that Casey “did not get a drop of blood on him except a little spot on one of his sleeves.” Wood and Casey, according to Wood’s testimony, after the second trip to the burning car, went down the Greenville Highway and turned off to the left and went five or six miles to the Bradley home, where Casey had his washing done. Casey went in the room, took a bath and when he came out “he had on a clean shirt.” Casey told Evans he lived at the Bradley’s. Evans testified, and his testimony was corroborated by others: “I later went to the Bradley home. I think it was on the 9th or 11th of July; I am not positive which day. I found this pistol that has been shown here in court at the Bradley home (shows witness pistol). This is the pistol I got at the Bradley home. When I found the pist.ol two chambers of the pistol had been freshly fired. There were some loaded cartridges in the pistol. Two of the chambers had been recently fired, fresh powder burns (witness indicates by use of pistol the freshly fired chambers). I took a piece of paper, in the presence of Mr. Garner, the coroner, and run through the barrel and it showed fresh powder, damp, showing that it had been freshly fired.”
We think this evidence in regard to the pistol a circumstance with the other evidence, as above set forth, to go to' the jury — the probative force was for them to determine.
We think there is nothing in the third contention. There was sufficient evidence on the part of the State to justify the jury in finding that the deceased came to his death as a result of the wounds inflicted by the accused.
The fourth contention is in regard to the failure of the court below to submit to the consideration of the jury the element of manslaughter. There is no evidence of manslaughter on this record. There are no facts on this record from the testimony of Wood or defendant Casey that would justify the court to submit to the jury the contention of defendant “that a fight ensued upon a chance meeting between the deceased and the accused, in which the accused lost his life.” The de*209fendant, wbo was a witness in bis own bebalf, never made any such contention in his testimony; nor did Wood or any witness in the case. The pistol found could have dropped from Causey’s pocket when he was dragged out of the car and the “stamping” from defendant Casey handling a heavy man weighing some 168 pounds.
It is well settled that where the evidence is sufficient to justify a charge on the aspect of manslaughter, it is the duty of the court to give it, and if this is not done it will be held' for error.
“In S. v. Johnson, 161 N. C., 264, there was no error in the charge as given, and it was held, Associate, Justice Brown delivering the opinion: ‘That there was not a scintilla of evidence upon which a verdict of manslaughter could have been based.’ In S. v. Teachey, 138 N. C., 598, the same ruling was made: ‘That no element of manslaughter was presented.’ And on the facts in evidence the same position seems to be fully justified in S. v. Bowman, 152 N. C., 817. See S. v. Chavis, 80 N. C., 353.” S. v. Merrick, 171 N. C., at p. 794-5; S. v. Ashburn, 187 N. C., at p. 725; S. v. Hardee, 192 N. C., 533.
The fifth contention of defendant is in regard to the failure of the court to declare and define the law of alibi, and give the contentions of the defendant arising thereon from the evidence.
The defendant contends that from the entire charge there is not a place in it where the word “alibi” is used. This may be so> but the court gave in the charge the testimony of defendant and the material witness in reference to the time of day Casey claimed he was at the burning car on 3 July, and fully set forth this contention of defendant and his witnesses that he got on the scene after the car was burning and at an hour of the day when he could not have committed the crime. The court below fully charged in regard to reasonable doubt. We can see nothing that could prejudice the defendant by not calling it “alibi.” The jury in the charge were given all the evidence bearing on this aspect, and from the charge we see no- prejudicial error.
In S. v. Steadman, 200 N. C., 768, this Court said: “The court below fully set forth the facts and contentions in the charge as to the alibi set up by defendants. S. v. Melton, 187 N. C., 481.”
We can see no evidence that would class Milton Wood as an accomplice of the defendant Casey. No instruction was prayed for by defendant Casey on this aspect, but in this jurisdiction the unsupported evidence of an accomplice, if believed by the jury, is sufficient to- convict. See S. v. Ashburn, supra.
It seems that while this appeal was pending in this Court the defendant’s counsel made a motion for mistrial, because certain of the jurors were alleged to have been prejudiced, and for a new trial for newly discovered evidence, before Judge G. Y. Cowper. He refused both *210motions and put bis refusal distinctly on tbe ground tbat be did not bave jurisdiction to deal witb tbe motion. Tbe appeal bond bas been given in tbe instant case. Tbe effect of tbis was to stay all proceedings in tbe court below until tbe appeal bas been beard bere. C. S., 4654. Tbis is particularly true since tbe enactment of chapter 55, Public Laws 1925, tbe effect of tbat being to transfer tbe execution against tbe body of tbe defendant to tbe Supreme Court. Tbe whole record being in tbe Supreme Court, then, for all purposes, tbe motions made before Judge Cowper were coram non judice.
Tbis case presents a sad tragedy. Tbe evidence was to tbe effect tbat defendant Casey was obsessed — “nursing bis wrath to keep it warm”— witb a wrong be felt bad been done him by the Atlas Plywood Corporation, or by Causey working for tbe Atlas Plywood Corporation, representing tbe corporation in its logging operations in tbe woods, in stopping tbe payment of a timber bill of Casey’s — tbe timber claimed to bave come off tbe corporation’s land, and stopping tbe removal of any more timber off the land which was also claimed by Sutton. Tbe evidence is all to tbe effect tbat tbe defendant Casey, in cutting and selling tbe timber acted in good faith, as be cut it off land claimed by another. Unfortunately, Casey, driving a Chevrolet truck, meets Causey driving a Hudson coach in tbe forest. Tbe cars and actors in tbe tragedy face each other. Revenge was in tbe heart of defendant Casey, and instead of appealing to tbe law of bis land, be applied tbe law of tbe jungle. He shot and killed Causey, and, no doubt seeking payment for bis timber, pulled him out of bis car, took some money out of bis pocket, and then put bis body back in the car, put gasoline on bis body and tbe car and burned Causey and tbe car up. Tbe body of Causey was so burned tbat it could not be identified, but many of bis personal effects were found, among them was a band ring and tbe inscription on tbe inside was as follows: “M. W. C. to J. C. C., Deer. 27, 1900.” Tbat was tbe date of bis wedding. All these years be bad carried tbis memento. Tbe evidence all indicates tbat be was an industrious man of high character, and be left a widow and children. He bas suffered a horrible death for tbis unfortunate controversy. Casey bas been convicted by a jury of bis countrymen of murder in tbe first degree, which carries witb it tbe penalty of death. He also left children.
From a thorough examination of a long record, in law we can find
No error.