#### STATE v. TOM WOOD.

(Filed 19 October, 1949.)

1. Criminal Daw § 50(1—

A remark of the court, made during tbe selection of the jury, that it was no reflection on the prospective juror’s mentality that he did not understand certain principles of law “as some professors know little, if anything, except about what they teach,” is held not to constitute prejudicial error, since it was not addressed to the testimony of defendant’s witness, a psychiatrist and college professor, who later testified solely on the question of mental capacity, and further did not purport to disparage the testimony of a college professor in his field.

2. Criminal Daw § 53b—

An instruction that reasonable doubt is a' doubt based on reason and common sense arising from the testimony in the case, cannot be held for prejudicial error when the court immediately thereafter charges that if, upon the conclusion of all the testimony and arguments and the charge, the jury does not have an abiding faith to a moral certainty of defendant’s guilt to acquit him, certainly where testimony of defendant’s admission of guilt comes from his own witnesses.

3. Criminal Daw § 5c—

The burden is upon defendant to prove his defense of insanity to the satisfaction of the jury.

4. Criminal Daw § 53h—

A charge to the effect that a defendant has a right not to testify and that his failure to testify should not be considered as a circumstance against him, will not be held for error on the ground that it called to the jury’s attention the fact of defendant’s absence from the stand. G.S. 8-54.

Appeal by defendant from Burgwyn, Special Judge, at March Term, 1949, of HaRNett.

Criminal prosecution on indictment charging the defendant with the murder of his wife, Ruby Wood.

On the afternoon of 12 December, 1948, the defendant and his wife left their mill-village apartment in the Town of Erwin and went off, walking-in the direction of the neighborhood milldam and creek. The defendant returned sometime during the night or in the early morning hours. His wife did not. Three days later her body was found partly submerged in the waters of the creek. Examination revealed that she had been brutally stabbed to death by someone using a sharp instrument. Any one of several stabs about her head and chest were lethal in character.

Following an investigation, the defendant was arrested and charged with the murder of his wife. At first he denied it, and sought to give some explanation of her disappearance. Later he confessed to his own witness, Dr. George Silver and others, that “I killed my wife.”

*741On tbe bearing, tbe defendant entered a plea of mental irresponsibility induced by an insane delusion that bis wife was unfaithful to bim and bad been running around with other men. It was conceded on tbe hearing that tbe deceased was a woman of excellent character. Two psychiatrists supported tbe defendant in bis plea of insanity.

Yerdict: Guilty of murder in tbe first degree.

Judgment: Death by asphyxiation.

Defendant appeals, assigning errors.

Attorney-General McMullan and Assistant-Attorney-General Moody for the State.

Everette L. Doffermyre for defendant.

Stacy, O. J.

Tbe defendant has been convicted of murder in tbe first degree, uxoricide, with no recommendation from tbe jury and sentenced to die as tbe law commands. He appeals, assigning as errors an incautious remark of tbe judge during tbe selection of tbe jury, and alleged inaccuracies in tbe charge.

During tbe selection of tbe jury and after four jurors bad been seated, tbe next prospective juror expressed some doubt on tbe voir dire as to bis ability to distinguish between tbe different degrees of an unlawful homicide or to appreciate tbe significance of a reasonable doubt. Whereupon counsel for defendant asked tbe court to excuse tbe juror. In response, tbe court remarked: “It is no reflection on tbe juror’s mental capacity not to know these things, as some college professors know little, if anything, except about what they teach.” Tbe defendant objected and excepted to tbe remark. Tbe court found that no prejudice bad resulted therefrom to tbe defendant as no college professors were on tbe jury, but did excuse tbe juror for cause. He was not asked to do more.

Conceding tbe infelicity of tbe remark, it was obviously without material significance to the defendant’s cause. In tbe first place, it bad no reference to tbe testimony of defendant’s witness, Dr. George Silver, psychiatrist and college professor, whó bad not yet gone upon tbe witness stand or testified in tbe case. Moreover, it did not purport to disparage tbe testimony of a college professor in bis field, tbe only field in which tbe defendant’s expert witnesses professed to speak. S. v. Howard, 129 N.C. 584, 40 S.E. 71. Tbe authorities are opposed to any invalidation of the trial on tbe basis of this exception. S. v. Lippard, 223 N.C. 167, 25 S.E. 2d 594; S. v. Baldwin, 178 N.C. 687, 100 S.E. 348; S. v. Robertson, 121 N.C. 551, 28 S.E. 59; S. v. Savage, 78 N.C. 520.

Exception is also taken to a portion of tbe court’s definition of a reasonable doubt: “a reasonable doubt is a doubt based on reason and common sense, and arising from tbe testimony in tbe case.” Of course, a reasonable *742doubt may arise from tbe lack of evidence as well as from tbe testimony in the case. But here, the court further instructed tbe jury: “If upon the conclusion of all tbe testimony and tbe arguments in tbe case, and tbe charge of tbe court, you cannot say that you have an abiding faith to a moral certainty of tbe defendant’s guilt, it would in that event become your duty to find him not guilty.” This was as favorable to tbe defendant as be could expect, and perhaps more, in tbe face of bis admission that be killed bis wife under tbe circumstances disclosed by tbe record. He would hardly be entitled to an acquittal since bis confession of guilt comes from tbe mouths of bis own witnesses, unless be were insane, and as to this be has tbe burden of satisfaction. S. v. Creech, 229 N.C. 662, 51 S.E. 2d 348; S. v. Swink, 229 N.C. 123, 47 S.E. 2d 852; S. v. Harris, 223 N.C. 697, 28 S.E. 2d 232; S. v. Norwood, 115 N.C. 789, 20 S.E. 712; S. v. Potts, 100 N.C. 457, 6 S.E. 657. It was conceded on tbe bearing that tbe defendant’s wife met a cruel death at bis bands.

Tbe cases of S. v. Tyndall, ante, 174, 52 S.E. 2d 272, and S. v. Flynn, ante, 293, 52 S.E. 2d 791, cited and relied upon by the defendant, are inapplicable to tbe facts of tbe instant record. Indeed, tbe Flynn case and authorities there cited, properly interpreted, seem to support tbe State’s contention. No violence was done to tbe rule as stated in S. v. Schoolfield, 184 N.C. 721, 114 S.E. 466.

Complaint is also registered to tbe court’s reference to tbe defendant’s absence from tbe witness stand, calling attention to tbe fact that this was bis right and should not be considered as a circumstance against him. Gr.S. 8-54. Tbe defendant elected not to testify in bis own behalf, but offered two expert witnesses, psychiatrists, who addressed themselves to bis mental deficiency. Under these circumstances, tbe defendant contends that bis silence should not have been brought to tbe attention of tbe jury at all by tbe trial court. He cites as authority for bis position tbe recent case of S. v. McNeill, 229 N.C. 377, 49 S.E. 2d 733. Suffice it to say McNeill’s case is not at war with what tbe judge said. Moreover, tbe following cases are in support of tbe present charge: S. v. Proctor, 213 N.C. 221, 195 S.E. 816; S. v. Horne, 209 N.C. 725, 184 S.E. 470; S. v. Riddle, 205 N.C. 591, 172 S.E. 400; S. v. Turner, 171 N.C. 803, 88 S.E. 523.

Tbe remaining exceptions are too attenuate to work a new trial or to require elaboration. They are not sustained, albeit they have been carefully examined.

On tbe record as presented, no reversible error has been shown. Hence, tbe verdict and judgment will be upheld.

No error.