#### STATE v. DWIGHT BEARD.

(Filed 28 January, 1935.)

1. Indictment O a — Motion to quash should be made before plea to indictment.

A motion to quash the bill of indictment on the ground that all the evidence before the grand jury was incompetent, which motion is not made until after defendant had entered a plea of not guilty upon his arraignment, is not made in apt time, and it is not error for the trial court to refuse to hear evidence in support of the motion to quash.

S. Homicide G d — Evidence of custom of deceased to have large sums in cash on certain day of each week held competent in this prosecution for homicide committed in perpeti’ation of robbery.

The State contended defendant murdered deceased in the perpetration of a robbery. The homicide occurred on a Thursday night. The State offered evidence that it had been the custom of deceased, for business reasons, to have in his possession large sums of money on Thursday of each week, and that he was robbed of such sums on the night of the homicide: Held,, the evidence of the custom of deceased was competent as tending to show deceased had such sum of money in his possession on the night of the homicide, and that the homicide was murder in the first degree, in that it was committed in the perpetration of a robbery. There was also evidence tending to show that defendant knew deceased had such sums of money on the day of the homicide.

*6743. Criminal Daw Xi e — Admission, of evidence held at least not prejudicial under facts of this case.

The State introduced evidence that after the arrest of a person involved in the crime with which defendant was charged, officers went to the place where defendant was living, and that defendant was not there. Defendant introduced evidence showing that he left his home and the State before he was charged with the crime in compliance with the terms of a judgment entered against him in a criminal prosecution: Held, the admission of the State’s evidence was at least not prejudicial to defendant.

4. Homicide G c — Testimony held properly admitted as being of dying declarations.

Defendant was charged with murder in the perpetration of robbery. Deceased died three days after the fatal shooting, and before his death stated, in effect, that he knew he could not recover from his wound, and that he was shot as he attempted to recover the money of which he had been robbed: Held, testimony of the statements was competent as being testimony of deceased’s dying declarations.

5. Criminal Daw Xi e — Charge of court in this case held not to contain prejudicial error when construed contextually as a whole.

In this prosecution for murder defendant relied on an alibi. The court instructed the jury as to the presumption of innocence and that no burden of proof rested upon defendant, but that the burden of proof was on the State to prove defendant’s guilt beyond a reasonable doubt, and correctly defined reasonable doubt, and that before returning a verdict of guilty they should so find the defendant guilty “from the evidence or lack of evidence in the case”: Held, defendant’s contention that the phrase “or lack of evidence” placed the burden of proving his alibi on him cannot be sustained, and the phrase complained of cannot be held for prejudicial error when construed contextually with the whole charge upon the burden of proof.

Brogden and Sohenok, JX, dissenting opinions.

Appeal by defendant from Warticle, J., at April Special Term, 1934, of Bueke.

No error.

At December Term, 1933, of the Superior Court of Burke County the grand jury returned a bill of indictment, as follows:

“State of North CaroliNA — Burke CouNty.

Superior Court, December Term, 1933.

“The jurors for the State upon their oath present that Dwight Beard, late of the county of Burke, on the 18th day of February, in the year of our Lord one thousand nine hundred and thirty-two, with force and arms, at and in the county aforesaid, unlawfully and wilfully, feloni-ously and with premeditation and deliberation, and of his malice aforethought, did kill and murder one Augustus Bounes, a human being, against the form of the statute in such case made and provided and against the peace and dignity of the State.

“L. S. SpurliNG, Solicitor

*675When it was returned by the grand jury, the said bill of indictment was endorsed as follows:

“No. 277. State v. Dwight Beard.

State, Pros. Witnesses,

J. P. Coffey X Alvin Eller.

“Those marked X sworn by the undersigned foreman, and examined before the grand jury, and this bill found a True Bill.

“A. L. BenNett, Foreman Grand Jury.”

The bill of indictment, with the said endorsement, was duly received by the presiding judge, and duly entered on the records of the court by the clerk.

Thereafter, during said December Term, 1933, of the court, the defendant Dwight Beard was duly arraigned on said indictment, and on such arraignment entered a plea of “Not guilty.”

After the defendant had entered a plea of not guilty, as aforesaid, his counsel moved the court for a writ of special venire to be directed to the sheriff of Catawba County, commanding the said sheriff to summon from said county seventy-five men to be and appear at the courthouse in Morganton during said term of court to serve as jurors at the trial of this action. The said motion was supported by affidavits, as required by the statute, C. S., 473, and was allowed by the court.

Thereafter, on motion of the solicitor for the State, and without objection by the defendant, the action was continued until the next term of the court, and the defendant Dwight Beard was remanded to the custody of the sheriff of Burke County.

When the action was called for trial at the next term of the court, to wit: April Special Term, 1934, counsel for defendant moved the court for a writ of special venire to be directed to the sheriff of McDowell County, commanding the said sheriff to summon from said county seventy-five men to be and appear at the courthouse in Morganton on 30 April, 1934, then and there to serve as jurors at the trial of this action. The said motion was supported by affidavits as required by statute, C.. S., 473, and was allowed by the court. The writ was duly issued to and served by the sheriff of McDowell County.

When the action was called for trial, after twelve jurors had been chosen from the special venire, but before they had been impaneled, counsel for the defendant moved the court to quash the indictment on the ground that the bill had been found a true bill by the grand jury at the December Term, 1933, of the court, on evidence which was wholly incompetent.'

*676Counsel for defendant stated to the court that they were able to show, and would show if permitted by the court to do so, that J. P. Coffey was the only witness who had been sworn and who had been examined before the grand jury, and that his testimony was wholly hearsay, in that said testimony was founded wholly on statements made to the said J. P. Coffey, in the absence of the defendant Dwight Beard, by Alvin Eller, whose name was endorsed on the bill of indictment as a witness for the State, but who had not been sworn or examined before the grand jury. Counsel for defendant further stated to the court that they were able to show, and would show if permitted by the court to do so, that a statement in writing, signed by Alvin Eller, had been read to the grand jury as evidence, and that the bill had been found by the grand jury as a true bill solely on the testimony of J. P. Coffey and the statement of Alvin Eller.

The court declined to hear evidence in support of the motion to quash, and denied the motion. The defendant excepted.

At the trial of the action the evidence for the State showed that the deceased Augustus Bounos was shot and fatally wounded near his home in Yaldese, Burke County, at about nine o’clock on Thursday night, 18 February, 1932, and that as the result of his wounds the said Augustus Bounos died in a hospital at Morganton on the Sunday following; that within a short time before he was shot the deceased had returned to his home from his place of business in Yaldese, in a truck, which he had parked at the garage in his back yard; that after he had parked his truck the deceased was assaulted and robbed of a large sum of money — about $1,800, which he had in a wallet in his pocket; that the deceased pursued the man who had assaulted and robbed him on the highway for a short distance; and that when the deceased overtook him near a mail box on the highway, the man who had assaulted and robbed the deceased turned and shot the deceased twice with a pistol, thereby inflicting the wounds which resulted in his death on the following Sunday.

The evidence for the State further tended to show that the defendant Dwight Beard is the man who shot and fatally wounded the deceased near the mail box on the highway; that immediately after the defendant turned and shot the deceased, who was pursuing him to prevent his escape, Alvin Eller, who had been with the defendant shortly before the robbery, near the home of the deceased, joined the defendant on the highway, and that they both ran from the scene of the homicide and escaped.

There was evidence for the State which showed that at the time he was shot, and for about five years prior to said time, the deceased Augustus Bounos operated a market and grocery store in Yaldese; that *677during said time certain factories located in and near Yaldese paid tbeir employees by checks on Friday of each week; and that it was the custom of the deceased to go to Morganton — a distance of about nine miles— on Thursday of each week and to return to Yaldese with a large sum of money, which he used to pay the checks of employees of the factories, who were his customers, on the succeeding Friday. There was also evidence for the State tending to show that the deceased went to Morganton on Thursday, 18 February, 1932, and returned to his place of business during the afternoon with about $1,800 in money, and that when he left his place of business at about 8 :30 that night he had the money in a wallet in his pocket. Neither the money nor the wallet was found on his person or near the scene of the homicide, after he was shot. The defendant objected to the introduction of evidence tending to show the custom of the deceased, and excepted to the refusal of the court to sustain his objections.

There was also evidence for the State tending to show that some time after the homicide, in consequence of statements made to them by Alvin Eller, who had been arrested on a warrant charging him with the murder of the deceased, officers went to the home of the father of the defendant at Lenoir, N. 0., where defendant was living at the date of the homicide, in search of the defendant, and that the officers did not find the defendant in his father’s home. The defendant objected to the introduction of this evidence, and excepted to the refusal of the court to sustain his objections.

There was also evidence for the State tending to show that after he was shot and while he was in the hospital at Morganton, where he died, the deceased made a statement to his brother tending to show that he was assaulted and robbed in his yard by the man who shot him on the highway, and that he pursued the man after the robbery for the purpose of recovering his money. The deceased said that he did not know the name of the man who had shot him, but that he had seen him about Yaldese during the past three or four weeks, and would know his face if he could see him again. Before making this statement to his brother, in response to questions as to how he was feeling, the deceased had said: “The man got me; I am suffering terribly; I ain’t going to make it; I can’t make it.” The defendant objected to the admission of the statements of the deceased to his brother as “dying declarations,” and excepted to the refusal of the court to sustain his objection.

The evidence for the defendant tended to show that during the month of February, 1932, the defendant lived in the home of his father at Lenoir, N. O.; that for several weeks prior to the date of the homicide the defendant had been from time to time in Yaldese, seeking employment there; that he left his father’s home in Lenoir at about 4:30 p.m. *678on Thursday, 18 February, 1932, and went to Valdese, by bus, arriving there at about 9 o’clock p.m.; that he did not know the deceased, and did not go to the home of the deceased at any time after his arrival in Valdese, and that he spent the evening in the company of friends, and left Valdese for Hickory at about 11 o’clock p.m.' The testimony of the defendant to this effect was corroborated by the testimony of other witnesses in his behalf. He denied that he is the man who assaulted and robbed the deceased at his home, and thereafter shot him near the mail box on the highway.

With respect to the burden of proof in this action, the court instructed the jury as follows:

“The law puts upon the State, which has made this charge against the defendant, the burden of proof. There is in this case, and I now so instruct you, lest I may later overlook giving you the instruction, no burden of proof on the defendant. The sole burden of proof is and rests and remains on the State throughout the trial. The State must satisfy you by the evidence in this case, beyond a reasonable doubt, of the guilt of the defendant before you will be justified in returning a verdict of guilty. As to the term ‘reasonable doubt,’ that does not mean that you must be satisfied beyond all doubt, nor beyond any doubt, nor satisfied beyond a doubt; it means that you must be satisfied beyond a reasonable doubt, or fully satisfied, satisfied to a moral certainty of the guilt of the defendant from the evidence or lack of evidence in the case. I instruct you that the defendant is presumed by the law to be innocent, as is the case of the defendant in every criminal action, and that the burden is upon the-State, as I have previously told you, to satisfy you by the evidence beyond a reasonable doubt of the guilt of the defendant, that is, before you will be justified in returning a verdict of guilty in this case.”

The defendant excepted to the instruction that the jury must be satisfied beyond a reasonable doubt “from the evidence or the lack of evidence in the case.”

On all the evidence at the trial, and under the instructions of the court in the charge, the jury returned a verdict that the defendant is guilty of murder in the first degree.

From judgment that he suffer death as prescribed by statute, C. S., 4200, the defendant appealed to the Supreme Court, assigning errors based on his exceptions appealing in the statement of the case on appeal.

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

Newland & Townsend, Hunter Martin, and John G. Stroupe for defendant.

*679CONNOR, J.

There was no error in the refusal of the court to hear evidence in support of the motion of the defendant that the indictment in this case be quashed on the ground that the bill was- found by the grand jury to be a true bill'on evidence which was wholly incompetent. Conceding that the facts are as contended by the defendant, there was no error in the denial of the motion, for the reason that the motion was made at April Term, 1934, áfter the defendant, on his arraignment at December Term, 1933, had entered a plea of not guilty. The motion to quash, which may be treated as a plea in abatement, was not made in apt time.

In S. v. Moore, 204 N. C., 545, 168 S. E., 842, it is said: “It is well settled as the law of this State that when a bill of indictment has been returned by the grand jury as a true bill upon testimony, all of which was incompetent, or upon the testimony of witnesses all of whom were disqualified by statute or by some well-settled principle of law in force in this State, the indictment will be quashed on the motion of the defendant, made in apt time; but where some of the testimony was competent and some incompetent, or some of the witnesses were qualified and some disqualified, the court will not go into the barren inquiry of how far testimony which was incompetent or witnesses who were disqualified contributed to the finding of the bill of indictment as a true bill. S. v. Levy, 200 N. C., 586, 158 S. E., 94; S. v. Mitchem, 188 N. C., 608, 125 S. E., 190; S. v. Coates, 130 N. C., 701, 41 S. E., 706. This is the general rule in other jurisdictions. 31 C. J., 808, and cases cited.”

In S. v. Levy, supra, it was held that there was no error in the refusal of the court to hear witnesses who had testified before the grand jury, in support of the defendant’s motion that the indictment be quashed on the ground that the bill was found a true bill solely on the testimony of these witnesses, which was incompetent because wholly hearsay. In the opinion in that case the late' Justice Adams, speaking for the Court, says: “The suggested practice would hinder the trial and result in useless delay. It would often require the examination of a number of witnesses, including, perchance, members of the grand jury; it would demand of the judge that he invade the province of the grand jury or exercise the function of a petit jury in finding the facts from conflicting evidence and passing upon the credibility of witnesses; it would turn the Superior Court into a forum for an unseemly contest between members of the grand jury and those whom they may have charged with crime. Besides, such a practice is unnecessary; if the evidence is incompetent it will be excluded by the trial court.”

In S. v. Pace, 159 N. C., 462, 74 S. E., 1018, it is said: “It is well settled that a plea in abatement, or a motion to quash a bill of indictment after a plea of not guilty is entered, is only allowed in the discre-*680ti'on of tbe court. His Honor declined, in bis discretion, to permit tbe plea to be filed. Tbe exercise of bis discretion is not reviewable by us. S. v. Jones, 88 N. C., 672.”

Tbe first assignment of error on tbis appeal, based on defendant’s exception to the denial of bis motion that the hill he quashed for the reasons assigned, cannot be sustained.

Tbe assignments of error based on defendant’s exceptions to tbe refusal of tbe court to sustain bis objections to evidence offered by tbe State cannot be sustained.

Tbe evidence tending to sbow tbat tbe custom of tbe deceased to bave in bis possession at bis place of business in Yaldese, on Thursday and Friday of each week, a large sum of money was competent as tending to sbow tbat tbe deceased bad such sum of money in bis possession on tbe night of tbe homicide, and tbat tbe homicide was murder in tbe first degree, as contended by tbe State. There was evidence also tending to sbow facts from which tbe jury might well infer tbat tbe defendant, when be returned to Yaldese from bis borne in Lenoir on Thursday afternoon knew tbat tbe deceased bad gone to Morganton tbat day and returned to Yaldese with a large sum of money.

Tbe evidence tending to sbow tbat tbe defendant was not at bis father’s borne in Lenoir when tbe officers went there, after tbe arrest of Alvin Eller, in search of tbe defendant, was at least not prejudicial to tbe defendant, whose evidence tended to sbow tbat bis absence from bis father’s home, where be was living at tbe date of tbe homicide, bad no connection with tbe charge against him in tbis case. Tbe evidence for tbe defendant tended to show tbat be left bis father’s home several days after tbe homicide and before be was accused of tbe murder of tbe deceased, and went to a distant state, in compliance with tbe terms of a judgment against tbe defendant in a criminal action pending in the Superior Court of Caldwell County. Tbis evidence was properly submitted to tbe jury as tending to rebut any presumption against tbe defendant in tbis case, from bis absence from bis home after tbe murder of Augustus Bounos.

Tbe evidence tending to sbow tbat after be was shot and fatally wounded on Thursday night and before be died in tbe hospital at Mor-ganton on tbe following Sunday, tbe deceased made statements to bis brother tending to sbow tbat be was shot and wounded while be was attempting to recover tbe money of which be bad been robbed, were competent as dying declarations. Before making these statements as testified by bis brother, tbe deceased, in response to questions as to bow be felt, bad said: “Tbe man got me; I am suffering terribly, I can’t make it; I ain’t going to make it; I do not know tbe name of tbe man who shot me, but would know him if I could see him again; he has been in and around Yaldese for tbe past few weeks.”

*681Tbe evidence was sufficient to show that at the time he made the statements the deceased was in actual danger of death, and that he was fully apprehensive of his approaching death. The statements made by the deceased under these conditions were properly admitted as dying declarations. S. v. Ham, 205 N. C., 749, 172 S. E., 473, and cases cited.

The defendant assigns as error the instruction of the court to the jury that the jury would not be justified in finding the defendant in this case guilty unless the jury was satisfied beyond a reasonable doubt of his guilt “from the evidence or the lack of evidence in the case.” The defendant’s contention that by this instruction the court imposed upon the defendant the burden to establish his alibi by his evidence cannot be sustained. Conceding that the instruction standing alone is erroneous, when considered in connection with the entire instruction as to the burden of proof in the case, it cannot be held that it was prejudicial to the defendant. In S. v. Freeman, 100 N. C., 429, 5 S. E., 921, it is said:

“While we do not assent to what is said about the shifting of the burden of proof, when the proof offered by the prisoner tends to show his absence from the place where the offense was perpetrated, and his presence elsewhere at the time, yet the charge in general is so clear and explicit as to what is required of the State in order to a conviction, that it could not be misleading to the jury, fairly considered.”

We find no error in the trial of this action. The judgment is affirmed.

No error.

BbogdeN, J.,

dissenting: The judge charged the jury as follows: “The court instructs you that you, under this evidence in the event you agree unanimously, can return one of two possible verdicts, and none other. You may, if you are satisfied beyond a reasonable doubt, return a verdict ... of murder in the first degree. If not so satisfied, then you would return a verdict of not guilty. Those are the only two possible verdicts arising in this case. . . . The court instructs you as a matter of law from a careful inspection of the evidence as the court listened to it that there is no deduction therefrom which would warrant you beyond a reasonable doubt to convict the prisoner of any offense other than murder in the first degree. . . . The court instructs you, therefore, that there are only two verdicts that you can render.”

C. S., 4640, provides: “Upon the trial of any indictment the prisoner may be convicted of crime charged therein or of a less degree of the same crime,” etc. The pertinent doctrine now prevailing and fortified by a host of decisions is as follows: “Where the evidence tends to prove that a murder was done, and that it was done by means of poison, lying in wait, imprisonment, starving, torture, or which has been committed *682in the perpetration or attempt to perpetrate any arson, rape, robbery,, burglary, or other felony, and where there is no evidence and where no inference can be fairly deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of ‘guilty of murder in the first degree,’ if they are satisfied beyond a reasonable doubt. . . If, however, there is any evidence, or if any inference can be fairly deduced therefrom tending to show one of the lower grades of murder, it is then the duty of the trial judge, under appropriate instructions, to submit that view to the jury. . . . When, however, the State relies upon evidence tending to show not only that the murder was perpetrated by one of the means specified in the statute, or that it was committed in the perpetration of or attempt to perpetrate a felony as defined in the statute, but also upon evidence tending to show deliberation and premeditation, the jury should be instructed that if they fail to find from the evidence, beyond a reasonable doubt, that the murder was perpetrated by one of the means specified in the statute, or that it was committed in the perpetration of or attempt to perpetrate a felony, and further fail to find from the evidence, beyond a reasonable doubt, that it was committed after deliberation and premeditation, they should return a verdict of guilty of murder in the second degree, provided, of course, they shall find from the evidence, beyond a reasonable doubt, that the defendant committed the murder. ... In such case, under the statute as construed by this court, it is for the jury and not the judge to find the fact of deliberation and premeditation, from the evidence, and beyond a reasonable doubt.” S. v. Newsome, 195 N. C., 552.

The wife of the deceased testified that she heard her husband drive his truck in the yard immediately before the killing. She said: “I listened for Grus to come in. He didn’t, and I thought he had gone on back of the house. Still he didn’t come in, and I heard voices shouting and holloing. I can’t say how many voices I heard shouting, just like people shouting to each other—angry voices. They seemed to be like close to the house when I first heard them and they got like they were moving off. The next thing I heard was two shots.”

The only eye-witness offered by the State was Felix Whitener. He was repairing his car in the moonlight near the house of the deceased and heard the defendant’s voice. He said: “It seemed they were plumb together, kind of in a tussle. I stood there and watched. . . . The tallest and heaviest man walked off that way, and first thing I seen a man raise up there and the other man was close to the center of the road. . . . The man got up here at the mail box and the other man . . . was over the road moving toward Yaldese, and then a *683voice . . . said, ‘Don’t follow me,’ and tben looked like be might have been ten feet further, and he said, ‘Don’t follow me.’ The third time he said, ‘We told you not to follow us.’ . . . Immediately after that a pistol fired twice,” etc.

What was the tussle about? What was the occasion of the angry voices “shouting and holloing?” What was the meaning of the commands of one of the men present for three times: “Do< not follow us, or stop following us?” To whom were these commands given? Was the party “following” armed or not? If the deceased was the party “following” and was shot by the defendant because of such pursuit, was the killing done with premeditation and deliberation? All of these matters are left in fog by the evidence. In the Newsome case, supra, when the defendant killed the girl to keep her from telling her father, the question as to whether such killing was done with deliberation and premeditation was left to the jury and a new trial awarded. I am of the opinion that the evidence in the present case calls for the application of C. S., 4640, more loudly and with more insistent voice than in the Newsome case.

Manifestly, there was sufficient evidence of statutory murder in the first degree to be submitted to the jury; but an examination of the evidence leads me to the conclusion the trial judge should have submitted murder in the second degree also. I do not think it can be said as a cold matter of law that only one inference could be drawn from the evident struggling, shouting, holloing, and pursuit that took place at the time of the killing.

SgheNCK, L,

dissenting: The trial judge charged the jury as follows : “The State must satisfy you by the evidence in this case, beyond a reasonable doubt, of the guilt of the defendant before you will be justified in returning a verdict of not guilty. As to the term ‘reasonable doubt,’ that does not mean that you must be satisfied beyond all doubt, nor beyond any doubt, nor satisfied beyond a doubt; it means that you must be satisfied beyond a reasonable doubt, or fully satisfied, satisfied to a moral certainty of the guilt of the defendant from the evidence or lack of evidence in the case.” I think this instruction was prejudicial error, especially so in the light of the fact that the principal defense relied upon by the defendant was that of an alibi.

The State’s evidence tended to show the defendant at the scene at the time of the homicide, the defendant’s evidence tended to show him elsewhere, and the jury, under the charge, might well have determined this vital issue of fact adverse to the defendant “for the lack of .evidence,” that is, for the lack of more convincing evidence of an alibi. The burden is never upon the defendant to establish an alibi. The burden, *684even when an alibi is set up, remains upon tbe State, S. v. Josey, 64 N. C., 56, to establish by the evidence, not the lack of it, beyond a reasonable doubt that the defendant was present and perpetrated the crime.

Nor is this error cured, in my opinion, by considering' the entire charge contextually. The instruction that the jury must be satisfied beyond a reasonable doubt of the defendant’s guilt “from the evidence or lack of evidence” is incompatible with the instruction given elsewhere in the charge to the effect that the jury must be satisfied beyond a reasonable doubt from all of the evidence of such guilt, and the jury was not enlightened as to which instruction to follow.

I cannot get the consent of my mind to affirm a judgment of death pronounced upon a verdict that may have been reached “from the . . . lack of evidence.”

I feel reasonably certain that the words “or lack of evidence” are due either to an inadvertence of the learned judge who tried the case or to a stenographic error, but since they appear in the case settled on appeal, “we are bound by the record; it imports verity.” S. v. Brown, ante, 156.