1. Trials — Continuance — Court's Discretion.
The refusal of the trial judge to grant a continuance of a case because of the absence of a witness is a matter within his discretion, and not reviewable on appeal unless this discretion has been abused; and where the trial is for murder in the first degree, and defended upon the theory that the prisoner was under the influence of a drug, at the time, which rendered him incapable of premeditation, and no evidence thereof has been offered, though it appears that opportunity under the circumstances was afforded, the refusal of a motion to continue for the absence of a witness to testify as to this fact is not reviewable.
2. Homicide — Murder — Premeditation — Evidence — Questions for Jury.
Where there was evidence that the prisoner immediately before the homicide went up to a group of negroes, among whom was the deceased, and said, "What did you say, old nigger?" repeated the remark, after a silence, whereupon the deceased asked him to whom he was speaking, and the prisoner replied with an oath that he was speaking to him, the deceased, saying further, "I don't like you, nohow, and what it takes to kill you I got it," and then took a pistol from his pocket, fired twice at the deceased, snapping empty cartridges several times, the firing causing the death; that the prisoner after the homicide expressed a regret that he had not had another shot at the deceased; and there was no evidence that the prisoner at the time was drunk or under the influence of a drug, it is held sufficient upon the question of deliberation and premeditation for conviction of murder in the first degree.
S. v. McCormac, 116 N.C. 1036., cited, approved, applied.
ALLEN, J.
We have given careful consideration to the entire record, and find no error in the proceedings in the Superior Court. The motion for a continuance was addressed to the discretion of the court, and the ruling of his Honor, denying the motion, is not reviewable, unless there has been an abuse of discretion, and we find none.
The killing was on the streets of Durham, in the daytime, in the presence of several witnesses, and immediately before the shooting the prisoner was at the home of Agnes Leathers, and just after was at his own home with his wife.
No evidence was offered by the prisoner, and nothing was developed upon the examination of the witnesses for the State indicating that the prisoner was not in full possession of his faculties.
His Honor was, therefore, fully justified in concluding that, if the prisoner was under the influence of cocaine at the time of the killing, as he alleged, he could prove the fact by other witnesses, and that he was not dependent upon the evidence of Bud Cain, a fugitive from justice, who might never return.
There was, in our opinion, sufficient evidence of premeditation and deliberation to sustain a conviction of murder in the first degree.
The absence of provocation, the preparation of a deadly weapon, the language used before the killing, "I am talking to you, damn you; I don't like you, nohow, and what it takes to kill you, I got it," and after, "that he wished he had got one more damn shot at the Dunnegan nigger," are circumstances tending to prove premeditation and deliberation, fit to be considered by the jury, and this evidence was submitted to them in a clear charge, which fully protected the rights of the prisoner.
In S. v. McCormac, 116 N.C. 1036, the Court says: "While premeditation and deliberation are not to be inferred as a matter of course from the want either of legal provocation or of proof of the use of provoking language, yet all such circumstances may be considered (470) by the jury in determining whether the testimony is inconsistent with any other hypothesis than that the prisoner acted upon a deliberately formed purpose. S. v. Fuller, 114 N.C. 885. Kerr (in his work on Homicide, sec. 72) says: `The question whether there has been deliberation is not ordinarily capable of actual proof, but must be determined by the jury from the circumstances. It has been said that an act is done with deliberation, however long or short a time intervenes after the intent is formed and before it is executed, if the offender has an opportunity to recollect the offense.' The test is involved in the question whether the accused acted under the influence of ungovernable passion, or whether there was evidence of the exercise of reason and judgment. The conduct of the accused just before or immediately after the killing would tend at least to show the state of mind at the moment of inflicting the fatal wound. In passing upon the question whether the facts in a given case are sufficient to show beyond a reasonable doubt that the killing was done with deliberation and premeditation, while sudden passion aroused by provocation that would neither excuse nor mitigate to manslaughter the killing with a deadly weapon, is sufficient, if the homicide is committed under its immediate influence, yet the want of provocation, the preparation of a weapon, proof that there was no quarreling just before the killing, may be considered by the jury, with other circumstances, in determining whether the act shall be attributed to sudden impulse or premeditated design."
This case has been approved in S. v. Lipscomb, 134 N.C. 694; S. v. Daniel, 139 N.C. 552; S. v. Stackhouse, 152 N.C. 508, and in other cases.
No error.
Cited: S. v. McClure, 166 N.C. 332; S. v. Cameron, ib., 384.
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