State v. . McDaniel , 115 N.C. 807 ( 1894 )

Both of the prisoners were convicted of murder in the first degree, but as no exceptions were taken or errors assigned by the prisoner Webb, and no error appearing on the face of the record, the judgment below must, as a matter of course, be affirmed as to him.

We need, therefore, only consider the exceptions of the prisoner McDaniel.

1. His Honor, among other things, charged the jury: "That the question of their (the prisoners') lives and deaths is in your hands. You must act honestly, conscientiously and fearlessly." We are at a loss to understand how these remarks could have prejudiced the prisoners, as they declare a standard of duty which every person on trial is interested in having impressed upon the jury.

2. Equally untenable is the objection to the instruction that there was no evidence warranting a verdict "that the killing was excusable, justifiable, accidental or manslaughter," and that the prisoners were either not guilty or were guilty of murder in the first or second degree. It appears that on the night of the homicide, and a short while before it occurred, the prisoner McDaniel declared that if the deceased went home with Hannah Winters he would kill him; that, accompanied by the prisoner Webb, he went to the house where the deceased was, and that he drew his pistol and informed "her" (we suppose the said Hannah) that he intended to kill the deceased as soon as he opened (810) the door. It further appears that he then told Webb to "do what he told him to do," whereupon Webb opened the door and McDaniel shot the deceased twice, inflicting the wounds of which he died. It is too plain for argument that, under this testimony, the prisoner McDaniel was guilty of murder in the first or second degree, as charged by the court.

3, 4 and 5. The remaining three exceptions are addressed to the instruction relating to the element of intoxication as affecting the degree of murder under our recent statute. There surely can be no objection to the instruction that if the jury had a reasonable doubt as to whether McDaniel formed a deliberate, premeditated design to kill the deceased, it was their duty to give the prisoner the benefit of such doubt, and to convict only in the second degree. Neither can there be any question as to the correctness of the following instruction: "A man may be intoxicated and still have mind enough to plan, deliberate and premeditate. If the intention to kill is deliberately formed, is premeditated, then the mere fact that defendant was drunk will not make the crime murder in the second degree." His Honor was therefore correct in charging that, notwithstanding intoxication, "if you are satisfied beyond a reasonable doubt that he had mind sufficient to plan a formed design to kill the deceased, that he deliberated and premeditated upon the killing in consequence of his formed design, deliberation and premeditation, then the fact of the intoxication of the defendant would not even then justify him, but your verdict should be murder in the first degree." We regard the principles embodied in the instruction as so well settled as to dispense with the necessity of discussion. We will refer, however, to Wharton Homicide, 369-371, in which the charge of the court is fully sustained. We have scrutinized the record with the care which the gravity of the offense demands, and we are of the opinion that the (811) judgment must be

Affirmed.

Cited: S. v. Kale, 124 N.C. 819.

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