State v. Payne, 213 N.C. 719 (1938)

June 15, 1938 · Supreme Court of North Carolina
213 N.C. 719


(Filed 15 June, 1938.)

1. Criminal Law § 29a—

In criminal cases every circumstance tliat is calculated to throw any light upon the supposed crime is permissible.

2. Criminal Law § 341b—

Plight is competent evidence to be considered by the jury in connection with other circumstances in passing upon the question of guilt.

3. Homicide § 21—

Plight is not evidence of, and may not be admitted to prove premedita-tation and deliberation.

4. Criminal Law § 48b—

When evidence is competent for any purpose, it would be error to exclude it.

5. Homicide § 20: Criminal Law § 34b — tinder facts of this case evidence of flight held competent to show motive and malice.

Defendants, charged with murder, admitted shooting deceased, but pleaded not guilty. The evidence tended to show that defendants were fugitives from justice and that deceased was an officer of the law and was killed in a shooting encounter with defendants after he had pursued them for a number of miles in an automobile in attempting to arrest them, and that the circumstances were such that defendants knew deceased was an officer and was attempting to arrest them. There was also evidence of statements made by defendants to the effect that they would never be captured alive and would shoot any officer attempting to arrest them. The State, for the purpose of showing flight, offered in evidence alleged confessions made by defendants, each admitted only against the defendant making it, and direct testimony as to escapes from arrest made by defendants following the homicide in question, including a shooting encounter with another officer. Defendants objected thereto on the ground that flight is not evidence of premeditation and deliberation, and that defendants had admitted the shooting. Held: The evidence of flight was competent to show the state of mind of defendants at the time of the homicide upon the question of motive and malice, and also upon the question of identity, the identity of defendants not having been definitely established until defendants made the alleged confessions objected to.

6. Criminal Law § 29b—

Objection to evidence on the ground that it tended to establish guilt of offenses separate and distinct from the crime charged is untenable when the evidence of such other offenses tends to show defendants’ state of mind at the time of the commission of the crime charged.

7. Homicide §§ 20, 21 — Evidence of threats against class to which deceased belonged is competent to show malice, premeditation and deliberation.

Evidence of threats made by defendants in a prosecution for homicide is competent to show premeditation and deliberation and previous express *720malice, and while such threats must be directed toward deceased with sufficient definiteness to connect them with the crime charged, when defendants are fugitives from justice, evidence of malice against all officers and threats to kill any officer attempting to arrest them and to die rather than be taken into custody, is competent in a prosecution of defendants for murder of an officer attempting to arrest them.

8. Same—

The fact that the first alleged threat was made by defendants some three or four years prior to the homicide does not render evidence of such threat incompetent when it appears that the threat was repeated up to the very time of the homicide, since the remoteness of the threat goes to its weight and not its competency.

9. Homicide § 17 — Evidence of articles found in defendants’ car held competent to show plan and design.

Evidence of articles taken from defendants’ car after the homicide, including pistols, guns, shells, bullets, tools, etc., is competent to show a design and plan, and the fact that the articles were found several months after the date of the crime does not render the evidence incompetent, the remoteness in time affecting only its probative force.

10. Homicide § 11 — Self-defense is not available to one killing officer to prevent lawful arrest.

The evidence disclosed that defendants were fugitives from justice and shot and killed an officer attempting to arrest them, that defendants refused to stop their car although commanded to do so and although pursued by the officer in a police car with the siren open, and that defendants knew deceased was an officer and was attempting to arrest them. Held: Deceased was acting in the line of his duty in attempting to arrest defendants, and defendants’ resisting arrest was unlawful, O. S., 2621 (62) (a), (151) (e) (g), and the plea of self-defense is not available to defendants.

11. Homicide § 3—

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation, O. S., 4200.

12. Homicide § 16—

The intentional killing of a human being with a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree.

13. Homicide § 25 — Evidence held sufficient to he submitted to the jury on question of guilt of murder in the first degree.

Evidence that defendants had escaped from the State’s Prison and were fugitives from justice, that they had express malice against all officers of the law and had threatened to kill any officer attempting to arrest them and to resist arrest even to the death, and that they shot and killed an officer of the law as he was attempting to arrest them, that defendants knew deceased was an officer and that defendants were unlawfully resisting arrest, that after the homicide defendants repeatedly escaped arrest and were involved in a shooting encounter with another officer in avoiding arrest and had made elaborate plans for flight and escape, is held sufficient to be submitted to the jury as to each defendant on the question of guilt of murder in the first degree.

*72114. Criminal Jjaw § 81c—

Alleged error must be prejudicial in order to entitle defendants to a new trial.

Seaweix, J., took no part in the consideration or decision of this case.

Appeal by defendants from Alley, J., at January Term, 1938, of BuNcombe.

Criminal indictment charging defendants with the murder of George Penn.

Verdict: Guilty of murder in the first degree.

Judgment: Death by asphyxiation.

Attorney-General Seawell and Assistant Attorneys-Generdl McMullan and Willis for the State.

J. Walter Haynes, Jones, Ward & Jones, and W. D. Siler for defendants.

Winborne, J.

The record on this appeal covers three hundred forty-two pages and contains six hundred and eighty-eight exceptions. Some of the exceptions have been abandoned; the others have been grouped in fifty-two assignments of error. Some of them are formal; others, manifestly untenable, require no further elaboration on well settled principles of law relating thereto. The remainder may be fairly treated in a few groups.

The defendants each pleaded “Not guilty.”

On the trial below the State introduced evidence tending to show this narrative: George Penn, a State Highway patrolman, ivas killed in the late afternoon of Sunday, 22 August, 1937, on the farm and near the barn of Van Patton on Webb Creek in Buncombe County, at the end of a nine or more miles automobile chase of defendants, fugitives from justice as felons under sentence for robbery. The chase began at a truck and bus weighing station, sponsored by the U. S. Bureau of Public Roads and conducted by the State Highway Commission as a unit in a Statewide road life survey. The station was located on IT. S. Highway No. 70, about midway between the junction of that highway with H. S. Highway No. 74, which leads to Chimney Rock, and the bridge entrance into the village of Sayles Bleachery opposite the municipal golf course, east of Asheville. All automotive vehicles were being stopped for information. By means of distinctive signs the traffic each way was warned to slow up, stop and “Obey Patrolman.” At the place there were a State Highway truck and a State Highway patrol car, distinctively marked, four employees of State Highway Commission, and three State-Highway patrolmen, including George Penn — dressed in regulation patrol uniforms.

*722Two men, later ascertained to be the defendants, approached the station from the west, but, being without driver’s license and in a stolen blue Ford sedan automobile, turned in the line of traffic at distance from the station variously described as fifteen feet to two hundred yards, and drove away at a rapid rate of speed in the direction from which they came. Patrolman Penn called out “Halt,” three times. Defendants did not stop. Penn set out in pursuit in the patrol car. The chase was over the bridge, into and through the Sayles Bleachery village, up the hill, over the railroad bridge, down to and out the old Fairview-Biltmore road to U. S. Highway No. 74, thence along the highway about six miles toward Chimney Hock, and thence on the Webb Creek dirt road three miles to Yan Patton’s barn. The Ford and the patrol car were seen traveling at a very high rate of speed, and were heard at several points along the route. The patrol car with siren blowing was close behind the Ford at every point they were seen from bridge entrance to the Bleachery to the barnyard of Yan Patton. In the beginning the two men were riding the front seat of the Ford. But near the top of the hill before reaching the railroad bridge one of them was seen crouched down between the front and back seats. As the ears came to U. S. Highway No. 74, the man in the rear seat of the Ford was shooting at the patrol car. Five or six shots were heard.

As the cars approached Yan Patton’s place, the Ford turned off the main road into the private roadway that leads to and ended at Patton’s barn and garage building. It was driven up to the corner of the barn and to the very edge of a field of average growth corn which surrounded the barn. The patrol car stopped fifty yards away. Patton testified that he didn’t see the officer get out of the patrol car, but he saw him after he was on the ground. He was dressed in officer’s uniform. “lust after I saw him on the ground, I heard a shot. That was the patrol shot. I think he was the first man shot. The others opened on him then . . . and kept it up until I saw him fall. . . . The shots came from right at the barn as near as I could tell. ... I could not tell how many shots I heard from the barn. They shot so fast. Half a dozen or something more. . . . He (officer) was standing behind his car when he fell. . . .” Then after one of the men had walked down to where the officer lay on the ground, they turned the Ford around and, in attempting to go out by the patrol car, stuck in a ditch. They then used the patrol car to get out. Then they left carrying the officer’s pistol with them. The legs of the officer were in the ditch and showed sign of being run over by the car. At the barn four empty 12-gauge shotgun shells and two rifle cartridge shells and clip were found. The clip and cartridge shells were found near a post at the upper side of the barn, at which there were tracks “where men stood” and a “mark on a plank that sticks out by the post that looked as if he had laid his gun *723down. Looked as if be used it for a rest. That was in direct line with . . . tbe officer’s body. . . .”

There were bullet boles in tbe front, tbe windshield and tbe top of tbe patrol car. Tbe men made their escape, but tbe blue Ford was located that night. There were fresh bullet boles in tbe trunk on tbe rear, and a shotgun was in tbe back seat. Finger prints were taken. Then tbe bunt began, resulting in tbe arrest of tbe defendants at Sanford, North Carolina, on 3 January, 1938. Later defendants, separately, confessed tbe shooting.

Tbe State, over defendants’ objection and for purpose of showing-flight, offered testimony of alleged confessions of tbe defendants and direct testimony as to escapes of tbe defendants from arrest by officers following tbe homicide in question up to tbe time of their arrest. Sheriff Brown testified that Turner admitted that in December, 1937, be and one Bolen Bird engaged in a shooting encounter with State Highway patrolmen in New Hanover County. Patrolman Sloan was permitted to describe tbe occurrence, a four-mile running chase, in which Turner shot at tbe officers with a high-powered rifle and pistol, and made bis escape. Tbe pistol and rifle were offered in evidence. 'Other testimony was offered by witnesses to show that on several occasions following tbe killing of Penn, Payne and Turner evaded arrest. Sheriff Brown testified that Turner stated that be bad a boat near Southport for use in case be ran into a “dead end.” Further statements of Turner and Payne and of other witnesses were admitted to tbe effect that Turner and Payne spent some time at a tourist camp at Myrtle Beach, South Carolina, with one Smith, who bad escaped with them from State’s Prison, but that they left there when Smith shot an officer. Tbe court admitted tbe evidence solely for the purpose of showing flight and then only against defendant who made tbe confession. Tbe jury was so instructed.

In criminal cases every circumstance that is calculated to throw any light upon tbe supposed crime is permissible. S. v. Case, 93 N. C., 546; S. v. Dickerson, 189 N. C., 327, 127 S. E., 256; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395.

Flight is competent evidence to be considered by tbe jury in connection with other circumstances in passing upon tbe question of guilt. S. v. Malonee, 154 N. C., 200, 69 S. E., 786; S. v. Hairston, 182 N. C., 851, 109 S. E., 45; S. v. Stewart, 189 N. C., 340, 127 S. E., 260; S. v. Steele, 190 N. C., 506, 130 S. E., 308; S. v. Adams, 191 N. C., 526, 132 S. E., 281; S. v. Mull, 196 N. C., 351, 145 S. E., 677; S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Lawrence, supra; S. v. Tate, 161 N. C., 280, 76 S. E., 715.

In S. v. Tate, supra, it is stated: “But such flight or concealment of tbe accused, while it raised no presumption of law as to guilt, is competent to be considered by tbe jury in connection with other circumstances.”

*724In S. v. Steele, supra, Varser, J., said: “Subsequent actions, including flight, . . . are competent on the question of guilt.”

Flight is not evidence of and may not be admitted to prove premeditation and deliberation. S. v. Foster, 130 N. C., 666, 42 S. E., 284; S. v. Tate, supra; S. v. Westmoreland, 181 N. C., 590, 107 S. E., 438; S. v. Collins, 189 N. C., 15, 126 S. E., 98; S. v. Stewart, supra; S. v. Steele, supra; S. v. Graham, 194 N. C., 459, 140 S. E., 26; S. v. Lewis, 209 N. C., 191, 183 S. E., 357.

Consequently, the defendants contend that having confessed to the shooting of the deceased, the door is closed to the State to introduce evidence of flight. The record discloses, however, that the identity of the defendants was not definitely known until after their arrest in January, 1938, and then only through the alleged confessions. The only independent testimony was that of the witness Yan Patton, who from the witness stand identified Turner as one of those at his barn at the time of the shooting. It is appropriate to remember .that on being arraigned the defendants pleaded not guilty.

“The circumscribed admission of the defendants should not be invoked as a means of excluding evidence material to the State’s proof of the essential elements of the crime charged in the indictment.” S. v. Galloway, 188 N. C., 416, 124 S. E., 745.

The present case is distinguishable from the factual situation in S. v. Foster, 130 N. C., 666, 41 S. E., 284.

Defendants contend that the evidence of flight was prejudicial in that it tended to show other offenses against the criminal law. If the evidence were competent for any purpose, it would be error to exclude it. S. v. Goff, 117 N. C., 755, 23 S. E., 355; S. v. Graham, supra; S. v. Galloway, supra.

In S. v. Miller, 189 N. C., 695, 128 S. E., 1, the Court said: “It is undoubtedly the general rule of law with some exceptions that evidence of a distinctly substantive offense is inadmissible to prove another and independent crime, the two being wholly disconnected and in no way related to each other.” Citing authorities. Then, continuing — ’“But to this there is the exception, as w'ell established as the rule itself, that proof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge, or scienter where such requirements are so connected with the offenses charged as to throw light upon the question.” , To like effect are: S. v. Simons, 178 N. C., 679, 100 S. E., 239; S. v. Stancill, 178 N. C., 683, 100 S. E., 241; S. v. Crouse, 182 N. C., 835, 108 S. E., 911; S. v. Dail, 191 N. C., 231, 131 S. E., 573; S. v. Hardy, 209 N. C., 83, 182 S. E., 831; S. v. Ray, 209 N. C., 772, 184 S. E., 836; S. v. Batts, 210 N. C., 659, 188 S. E., 99; S. v. Flowers, 211 N. C., 721, 192 S. E., 110; S. v. Smoak, ante, 79, 195 S. E., 72.

*725 We think the evidence of tbe occurrences in which the defendants made their escapes singular from the State Prison and subsequent evasions of arrest are competent as tending to show the state of mind of the defendants at the time of the killing of George Penn, at the end of a running gun battle in an attempt to escape arrest by him. In their confession the defendants separately admit that they knew that an officer was pursuing them and that they heard the siren on his automobile.

The State, also over objection by defendants, offered testimony tending to show threats: (1) In 1933 or 1934, while in prison, the defendant Turner stated on different occasions “that he did not have any use for any officers at all, ... if he ever got out and got behind a .45 that it would then be on.” (2) About ten days prior to the homicide defendant Turner, with Payne standing near by, stated that “he wanted a driver’s license so he would be protected in case he got stopped. He said he was not going to stop and if anybody ever tried to set him in again he would kill them, or any damn law either.” (3) On Sunday next before 22 August, 1937, Turner, after stating that “his wife had him set in one time, had him took back,” expressed desire to torture her with mosquitoes and then to beat her to death, and, on being asked if he would like to die that way, he said he “wouldn’t mind it if he could take a couple of those s. o. b.’s with him.”

Evidence of threats are admissible and may be offered as tending to show premeditation and deliberation, and previous express malice, which are necessary to convict of murder in the first degree. S. v. Tate, supra; S. v. Shouse, 166 N. C., 306, 81 S. E., 333; S. v. Graham, supra; S. v. Miller, supra; S. v. Wishon, 198 N. S., 762, 153 S. E., 395; S. v. Casey, 201 N. C., 185, 159 S. E., 337.

“General threats to kill not shown to have any reference to deceased are not admissible in evidence, but a threat to kill or injure someone not definitely designated are admissible in evidence where other facts adduced give individuation to it.” S. v. Shouse, supra.

“Threats made by a person against one of a class are admissible on a prosecution for committing a crime against another one of the same class.” 8 E. C. L., 187; S. v. Ellis, 101 N. C., 765, 7 S. E., 704; S. v. Hunt, 128 N. C., 584, 38 S. E., 473; C. v. Burton, 172 N. C., 939, 90 S. E., 561; S. v. Baity, 180 N. C., 722, 105 S. E., 200; S. v. Miller, 197 N. C., 445, 149 S. E., 590; S. v. Casey, supra.

The fact that the first alleged threat was made three or four years prior to the homicide does not make such evidence incompetent as a matter of law. As the judge told the jury, the remoteness goes only to the weight of the evidence and not to its competency. 8 R. C. L., 187; S. v. Merrick, 172 N. C., 870, 90 S. E., 257.

In S. v. Johnson, 176 N. C., 722, 97 S. E., 14, Brown, J., said: “We might hesitate to admit evidence of threats, made two years before the *726homicide, if they stood alone, although threats made twelve months prior were admitted in S. v. Howard, 82 N. C., 624, without evidence of continuing threats. In this case there is evidence of continuing and repeated threats up to six months before the homicide . . .,” cited in S. v. Wishon, supra, wherein the Court said: “Evidence of the threat first made is competent at least in corroboration.” S. v. McDuffie, 107 N. C., 885, 12 S. E., 83.

In the case in hand there is evidence tending to show threats on the very day the homicide took place — showing the state of mind of the defendants with respect to being returned to prison — a fixed determination to resist even unto death.

Testimony was introduced, without objection, tending to show that both Payne and Turner had made statements to the effect that they had rather die than go back to prison; that a few days prior to 22 August, 1937, at a tourist camp near Asheville, Payne said to Turner: “You are going to keep on and get us caught messing around with these women,” to which Turner replied that “he didn't give much of a damn because he was not going back to Caledonia (prison) anyway because it was a living hell’ ”; and that on the morning of 22 August, 1937, the witness Estelle Miller told defendants “that they had better quit messing around here, . . . that they would get us in trouble and get in trouble, too, and Bill said that was right, that he had tried to get Jack (Turner.) to quit messing around here so much and Jack said he didn’t care, that he would never be took back alive nohow, to where he came from — he hated to kill anybody but he would before he would be took back; he would rather die as to go back.”

The State also offered in evidence each article taken from the automobile in which the defendants were riding at the time of their arrest on 3 January, 1938, in Sanford, North Carolina, including pistols, automatic shotgun, pistol holster, many pistol bullets, shotgun shells, loaded with buckshot, crowbar, sledge hammers, bolt cutter, breast drill, brace and bit, claw hammers, screwdrivers, wrenches, steel chisel, cold chisel, steel punch, files, hack saw, cushion, green and pink blankets, quilts, odd gloves, flashlight and personal effects of the defendants. Objections thereto cover nearly two hundred exceptions. Counsel for defendants complain that these articles were introduced item by item and displayed on tables in the presence of the jury to the great prejudice of defendants. In the case of S. v. Fogleman, 204 N. C., 401, 168 S. E., 536, speaking to the subject, Adams, J., said: “The exceptions are without merit. Evidence of this character is admissible on the principle that it tends to show a design and plan. The existence of such design or plan may be proved circumstantially as well as by direct utterance. . . . If the gun, the shells and the several implements in the prisoners’ car *727bad been discovered immediately after tbe homicide, evidence of tbe fact would unquestionably bave been competent.” In tbe present case tbe remoteness from tbe date of tbe crime does not impair tbe competency of tbe evidence, tbe probative force of wbicb was a matter for tbe consideration of tbe jury.

Defendants insist tbat tbe court erred in tbat part of tbe charge in wbicb defendants’ plea of self-defense was submitted to tbe jury. Under tbe evidence presented on this appeal, it is clear tbat tbe plea is not well •taken and tbe court could very properly bave refused to submit it to tbe jury.

“When a man puts himself in a state of resistance, and openly defies tbe officers of tbe law, be is not allowed to take advantage of bis own wrong, if bis life is thereby endangered, and to set up tbe excuse of self-defense.” S. v. Garrett, 60 N. C., 148; S. v. Horner, 139 N. C., 603, 52 S. E., 63; S. v. Durham, 141 N. C., 741, 53 S. E., 720; S. v. McClure, 166 N. C., 321, 81 S. E., 458; S. v. Miller, supra.

In S. v. Horner, supra, tbe Court said: “He (defendant) admits tbe homicide with a deadly weapon, thereby taking upon himself tbe burden of showing tbat be was acting in self-defense. Tbe deceased was acting strictly in tbe line of bis duty in endeavoring to make tbe arrest and tbe prisoner was, upon bis own showing, avoiding if not resisting arrest. Tbe principle governing the case is thus stated in S. v. Garrett, . . . quoted as above . . . Tbe application of this principle to prisoner’s testimony sustains bis Honor in saying to tbe jury tbat be was guilty of manslaughter at tbe least. . . . Tbe prisoner knew tbat deceased was a deputy sheriff and tbat be bad a warrant for bis arrest. It was bis duty to submit to arrest, and in resisting it, with a gun in bis band, it is not open to him to say tbat be acted in self-defense. Conceding tbat, as be was going away from tbe officer, refusing to submit to arrest, tbe officer was not justified in shooting him to make tbe arrest, does not affect bis right to kill. If there was a necessity to shoot tbe deceased to save bis life, it was tbe result of bis unlawful act in resisting tbe mandate of tbe law. Tbe position of tbe prisoner is similar in this respect to one who brings on or provokes a difficulty, and in tbe progress of it kills. It is not se defendo because be brought on tbe necessity. . . . Tbe power and right of tbe officer in making arrests . . . is not tbe test of tbe prisoner’s guilt. It may be tbat tbe prisoner was right in saying tbat both acted hastily, but be was in tbe wrong-in refusing to submit to arrest, and tbe law fixes tbe responsibility for tbe homicide upon him. If tbe killing is of malice, it is murder; if premeditated, it is murder in tbe first degree — in no aspect is it in self-defense.”

*728To the same effect is S. v. Durham, supra. It is there said: “In this State we have a statute (Laws 1889, ch. 51) which enacts that 'any person who willfully and unlawfully resists, delays or obstructs a public officer in discharging or attempting to discharge a duty of his office shall be guilty of a misdemeanor.’ (C. S., 4378.) At the time he killed the deceased the defendant was engaged in an unlawful act, not only malum in se (being in armed resistance to the process of the State), but an act directly connected with and which finally resulted in the death of the officer; for it is plain that had the defendant himself not resisted the. law but submitted to arrest, there would have been no homicide by anyone.”

In S. v. McClure, supra, the Court said: “The assault upon the deceased (officer) was not an offense against the individual, but one against the public, for this reason the authorities generally support the position that it is the right of peace officer to arrest, without warrant, one who assaults him . . . and the officer did not lose the right in this case because the prisoner had walked off, according to the evidence of one witness, thirty or forty feet, and to that of another fifty to seventy-five yards.”

In the present case it is clear that Patrolman George Penn, the deceased, was acting in the line and discharge of his duty and within his rights as an officer in attempting to arrest the defendants. He had the right to arrest without a warrant. But be that as it may, the defendants were in open defiance of the law. They admit, in their confession, that they knew the deceased was an officer; that they heard the siren on his automobile; that they turned in line of traffic in the face of the warning to drive slow, stop, and “Obey Patrolman”; that one of the defendants shot at deceased in the chase; that they were riding in a stolen automobile, and had no license to operate it. C. S., 2621 (151), (e), (g). Also, their refusal to obey the siren and stop, C. S., 2621 (62), (a), constituted a continuing offense in defiance of the law. The evidence also shows them to be escaped felons and that, in escaping from prison, they forcibly took and carried away the superintendent and other persons, which in law is a felony. On the facts presented on this record, the plea of self-defense is not open to them.

It is pertinent to note that “any citizen of North Carolina shall have authority to apprehend any convict who may escape before the expiration of his term of imprisonment, whether he be guilty of a felony or misdemeanor, and retain him in custody and deliver him to the director of prisons.” Public Laws 1933, ch. 172, sec. 21; C. S., 7748 (q).

Murder in the first degree is the unlawful killing of human being with malice and with premeditation and deliberation. C. S., 4200; S. v. Thomas, 118 N. C., 1113, 24 S. E., 535; C. v. Benson, 183 N. C., 795, 111 S. E., 869; S. v. Steele, supra.

*729Tbe intentional killing of a human being with a deadly weapon implies malice and, if nothing else appears, constitutes murder in the second degree. S. v. Terrell, 212 N. C., 145, 193 S. E., 161; S. v. Robinson, ante, 273, 195 S. E., 824; S. v. Mosley, ante, 304, 195 S. E., 830.

“The additional elements of premeditation and deliberation, necessary to constitute murder in the first degree, are not presumed from a killing with a deadly weapon. They must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree can be rendered against the prisoner.” S. v. Miller, supra.

“Premeditation means ‘thought beforehand’ for some length of time, however short.” S. v. McClure, supra; S. v. Benson, supra; S. v. Steele, supra.

“Deliberation means that the act is done in cool state of blood. It does not mean brooding over it or reflecting upon it for a week, a day oí-an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation.” S. v. Benson, supra; S. v. Steele, supra.

Tested by these well settled principles, the evidence presented on the case in hand is suifleient to be submitted to the jury, and to sustain the verdict. In addition to evidence of threats against officers, of a declared purpose to resist arrest at the risk of their own lives, of their preparation, of their ruthless conduct, of their defiance of law, and other evidence bearing on the question, the defendant Payne, on being asked after his arrest why he shot Officer Penn, said: “He had it coming to him, he was a damned fool.”

- We have carefully examined all other exceptions and find no reversible error. Even if there be technical error in some of the rulings and in the course of the trial, this alone would not work a new trial. “We are convinced, from a searching scrutiny of all that transpired on the hearing, to which exceptions have been taken, that substantial justice has been done.”

In the judgment below we find

No error.

Seawell, J., took no part in the consideration or decision of this case.