State v. . Norwood , 115 N.C. 789 ( 1894 )

If the prisoner did not put the pins in the child's mouth, or if, though she placed them there, they were not the instrumental cause of its death, she was not guilty, and so the court told the jury. If the jury found, as they must have done under the instructions of the court, that she brought about its death, it was a killing with a deadly weapon. The question whether an instrument, with which a personal injury has been inflicted, is a deadly weapon, depends not infrequently more upon the manner of its use than upon the intrinsic character of the instrument itself. S. v. Huntley, 91 N.C. 617. We may expect death to ensue from pushing such a pin down the throat of an infant, just as we may look for death or serious bodily harm as a consequence of firing a pistol into a crowd of human beings, or at a particular person. The intentional killing with a deadly weapon, when proved or admitted, raises a presumption of malice, and such evidence would, before the enactment of the recent statute establishing and defining the two grades of that crime, have amounted to prima facie proof of murder. But now, though the fact of such killing still gives rise to the presumption of malice, and is prima facie evidence of murder in the second degree, it does not show that the act was done deliberately or after premeditation. S. v. Fuller,114 N.C. 885; 2 Bishop Cr. Law, sec. 703; S. v. Dunn, 38 Pa. St., 9;People v. Cox, 76 Cal. 285. In order to conviction of murder in the first degree, as the judge below properly instructed the jury, it was necessary that the State should show that the prisoner deliberately determined to take the child's life by putting the pin or pins into (793) its mouth, and thereupon, it being immaterial how soon after resolving to do so, carried her purpose into execution and thereby caused its death. As to the quantum of proof necessary to conviction of murder in the first degree, the court adopted the language of the prayer submitted for the prisoner, and, of course, left no ground for objection.

We cannot conceive how the jury was misled by the failure of the court to state, in terms, that the pins used in the manner described by the witnesses would be deadly weapons, or by the general instruction that the unlawful killing, if done, would, in this case, have raised a presumption of malice, since the jury were explicitly made to understand that the prisoner was not guilty of any offense, unless the death of the infant was caused by her pushing the pins into its mouth. So it was impossible under the instructions given and upon the evidence to find that there was an unlawful killing, unless it was effected by such use by her of the pin or pins.

"By our decisions," said the Court in S. v. Vann, 82 N.C. 631, "matters of extenuation and excuse, or discharge by reason of insanity, must be shown by him who sets it up." The prisoner offered no testimony tending to show insanity, and the presumption in favor of sanity was therefore unrebutted.

We concur with the judge below in the view that there was no aspect of the evidence in which the offense of killing, if done by the prisoner in the manner described by the witnesses (and so it must have been done if at all), could be mitigated to manslaughter. It is possible that in such a case there might have been testimony tending to show that the killing was done by putting pins into the mouth of an infant carelessly, not purposely, and if any such evidence had been offered it would have been proper to have submitted to the jury, with suitable instructions, the question whether the mitigating circumstances relied on were proved.

After considering the carefully prepared arguments of counsel (794) upon the assignments of error, we feel constrained to hold that there is

No error.

Cited: S. v. McCormac, 116 N.C. 1034; S. v. Covington, 117 N.C. 862;S. v. Thomas, 118 N.C. 1118; S. v. Dowden, ib., 1153; S. v. Rhyne,124 N.C. 854, 857; S. v. Truesdale, 125 N.C. 698;S. v. Smith, ib., 621; S. v. Archbell, 139 N.C. 539; S. v. Hunt,134 N.C. 688; S. v. Lipscomb, ib., 693; S. v. Bishop, 131 N.C. 761;S. v. Matthews, 142 N.C. 624; S. v. Hancock, 151 N.C. 701;S. v. Spivey, ib., 686; S. v. Stackhouse, 152 N.C. 808; S. v. Beal,170 N.C. 767.