#### STATE v. CLAY FOGLEMAN.

(Filed 22 March, 1933.)

1. Criminal Law I i — Functions of court and jury are separate and distinct.

The functions of the court and jury are separate and distinct, and neither may invade the province of the other, it being the exclusive province of the court to explain the law and the exclusive province of the jury to determine the facts and apply the law as explained by the court to the facts as found.

2. Criminal Law G p — Evidence of identity of defendant as perpetrator of the crime charged held sufficient.

Where in a prosecution for homicide the deceased’s wife testifies that upon hearing shots she rushed from a back room into the storeroom where her husband had been shot, that two lights were burning in the room, and that she saw the defendant over a curtain between the two rooms before entering the storeroom, and saw him after entering the storeroom while he was standing with a pistol in his hand about seven feet from her, that the defendant left the store and got into an automobile waiting with the motor running and driven by another, and minutely describes the automobile owned by defendant, and positively identifies the defendant as the man who had committed the crime: *Held,*the evidence of the defendant’s identity as the perpetrator of the crime is sufficient to be submitted to the jury, the weight and credibility of the wife’s identification of the defendant being for their determination, and defendant’s motion as of nonsuit on the ground that her testimony was based upon imagination and auto-suggestion was properly refused.

3. Criminal Law I h — Held: trial court fully corrected improper comments of counsel in argument to jury.

Where counsel for the private prosecution, in his argument to the jury, comments upon the defendant’s failure to testify in his own behalf and intimates that defendant's wife had also failed to testify in his behalf, and the court immediately upon each improper remark stops the argument, directs the counsel to desist, and instructs the jury not to be influenced by the improper remarks, and in his charge specifically and emphatically instructs the jury not to allow defendant’s failure to testify to prejudice them and instructs them to exclude from their minds everything except the evidence and the law as declared by the court, the defendant’s exceptions to the remarks of counsel will not be sustained.

4. Homicide G d — Testimony in this case held competent on issue of premeditation and deliberation.

Testimony that defendant’s car contained, among other implements, tools adapted to robbery and burglary is held competent in this prosecution for homicide where the evidence tended to show that defendant killed deceased at deceased’s store while attempting to rob him, and that after the crime defendant escaped in the car, the testimony being of a circumstance tending to show a design or plan on the part of the defendant, *402and the fact that several days elapsed between the date of the killing and the seizure of defendant’s car is not sufficient to render the testimony incompetent, the probative force thereof being for the jury.

5. Homicide H a — Indictment under C. S., 4614, is sufficient to support charge, based on evidence, relative to murder in attempt to rob.

An indictment charging the essential facts of murder as required by O. S., 4614, is sufficient to sustain the court’s charge based upon the evidence in the case relative to murder committed in the perpetration of robbery or other felony.

Beogden, J., dissents.

Appeal by prisoner from *Slack, J.,*at September Term, 1932, of RociaNGHAM.

No error.

The prisoner, indicted for the murder of *W.*J. Carter, was convicted of murder in the first degree, and from judgment of death by electrocution he appealed, assigning error. He neither testified nor introduced any witnesses. The evidence for the State tends to show the facts to be as follows:

The deceased was 61 years old. He conducted a mercantile business near a hard-surfaced highway 3 miles south of Leaksville, the direction of the highway being north and south. Parallel with the highway was a storeroom (occupied by the deceased) the length of which was about 30 feet and the width about 17 feet. The store porch was about 20 feet from the road. In the front part of the building were two doors — a single door on the north side and a double door near the center. Outside there was an oil pump near the south edge of the porch; another just north of the double door; and another at a break in the level of the porch. There were also lights outside; one of them would be over an automobile standing in front of the door. Back of the store, separated by a partition were 3 rooms occupied by the deceased and his family as a living apartment. Between the store and the first of these rooms was a screen door, the lower part of which, about five feet, was covered with a curtain; above the curtain there was an open space through which a person in the room could look into the storeroom.

On 30 April, 1932, between 9 and 10 o’clock at night, while her husband was closing the windows, Mrs. Carter, who was then in the room adjoining the one just referred to, heard a ear drive up in front of the store. At this time there were two lights outside and two inside the store. She heard some one say “Stick ’em up,” and immediately a volley of shots was fired. Seven or eight bullets entered the body of the deceased; his death was instantaneous.

Mrs. Carter rushed through the screen door into the store. Looking over the curtain as she passed she saw a man inside the store door looking at her husband as the latter made his last step behind the stove. The *403man wbo bad done the shooting got into tbe automobile on the right side of the seat, the motor yet running, and quickly started in the direction of Leaksville.

Mrs. Carter identified the prisoner as the man who had killed her husband. She also described the car.

There was evidence that only a few hours before the deceased had been shot the defendant had been seen near Danville in a car the appearance of which was similar to that of the car seen by Mrs. Carter at the store; that it had been seen by others; and that it had subsequently been repainted.

Reeves Cooper, an uncle of the prisoner by marriage, testified that on 8 May, 1932, the prisoner had come to his house at about 9 o’clock at night and had left a car of the description given by Mrs. Carter, except as to the color, which the State contended, had been changed by repainting. That night an officer took the car into his possession and found in it the following articles: A sawed-off shot gun, a brace and bit, a chisel, a flat iron, a wrench, a square and block, hammers, files, wire cutters, gun shells, overalls, shirts, and North Carolina, Virginia, and Kentucky license plates. The prisoner was arrested in Cincinnati, Ohio, in the month of June.

*Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.*

*Glidewell & Gwyn for prisoner.*

Adams, J.

The prisoner neither testified nor introduced any witness, and at the close of the evidence offered by the State he moved to dismiss the action as in case of nonsuit. O. S., 4643. The ground upon which the motion was made is the insufficiency of the testimony tending to identify the prisoner as the man who shot and killed the deceased; and the asserted insufficiency is based upon the assumption that the testimony of identity, as given by Mrs. Carter, is the product of imagination in part and in part of auto-suggestion. Whence it is argued that this Court should recognize the failure of the jury to perceive the fallacy of the testimony and should hold as a matter of law that the evidence is insufficient to sustain the verdict — “otherwise,” it is said, “a great and irreparable injury will be done.”

Mrs. Carter, the wife of the deceased, was the only witness who attempted to identify the assailant. On this point she was minute, as will appear from the following summary of her testimony: “As I went through the screen door I looked over the curtain and saw a man standing there just a step from the door, inside the door. He was looking at my husband ... I asked him what he meant. He was about seven *404feet from me . . . My husband was standing behind the stove. That was about 8 or 10 feet, I guess, from where I was. The lights were burning at that time . . . The automobile was standing right in front of the door. I think the lights of the automobile were burning at the time. The motor was running; I saw into the car; another man was sitting right under the wheel. It was a roadster, a dark bodied car with a light top, built for speed. So far as I know, I had never before seen the man that was in the car ... As to whether I had seen the man who was standing in the door before that time, I was not acquainted with him, but I think I had seen him, most sure I had. I have seen him since that time. I saw him in Greensboro and I see him here, here in the courthouse. I see him here today; there he sits, right over there . . . Ilis name is Clay Eogleman. No one else was in the room at the time I got there except him and my husband. Clay Eogleman, at the time I came in the room had a gun in his right hand; I can’t describe the gun; it was a pistol . . . Olay Eogleman went to the automobile; he got in the automobile . . . He got in on the right side . . . When I heard the shooting I went in as quickly as I could. My husband was on my mind. The first man I saw was that man sitting right there at the table. I saw him before I came out of the bedroom over the screen door. As to whether I was asked about the identification of the prisoner at the preliminary hearing, I told you I identified him . ... I was going to my husband all the time as fast as I could. I was looking at both; looking at the man standing there with the gun and looking at my husband, also. . . . When the man went out of the door his back was to me . . . I got a good right side view of his face ... I saw enough to know this was the man. Yes, I saw the right side of his face and the outline of his body; I saw enough to know this is the man. ... I knew I was going (to Greensboro) to identify Eogleman; I knew they said he was there. I was not shown any other prisoner except Eogleman. I didn’t have to be shown any other one; ho was the man I saw that night standing in the door; I am positive.”

It may be doubted whether our system of jurisprudence contains any principle more strictly defined than that which separates the functions of the courts from those of the jury. According to a custom that formerly prevailed evidence was submitted to a jury probably as a supplement to their own knowledge; but in a later period the custom was abandoned, and the jury assumed the character, since maintained, of a determining-agency whose sole function is “to give a true verdict according to the evidence.” The discharge of this duty implies the necessity of examining the testimony, finding the facts, and applying the law to the facts afe found.

*405Tbe judge lays down and explains tbe law, and tbe jury is under obligation to accept and apply tbe law as tbus explained. Tbe determination of tbe facts is tbe exclusive province of tbe jury; tbe elucidation of tbe law is tbe exclusive province of tbe judge. Tbe jury cannot exercise tbe prerogatives of tbe judge; tbe judge cannot exercise tbe prerogatives of tbe jury. Tbe two are distinct, and neither bas tbe right to invade tbe field of tbe other. *S. v. Walker,*4 N. C., 662; *S. v. Hildreth,*31 N. C., 429; *S. v. Matthews,*78 N. C., 523; *S. v. Murphrey,*186 N. C., 113; *S. v. Lawrence,*196 N. C., 562. Not only is tbe judge forbidden by C. S., 564 to “give an opinion whether a fact is fully or sufficiently proven” *(S. v. Windley,*178 N. C., 670; *S. v. Sullivan,*193 N. C., 754); be is prohibited from finding tbe determinative facts in a criminal action even by consent of tbe defendant or bis counsel. *S. v. Allen,*166 N. C., 265. He may grant relief from an unfortunate result by setting-aside tbe verdict; but in tbe present case tbe trial judge denied tbe prisoner’s motion to vacate tbe verdict and award a new trial. Evidently be saw no satisfactory reason for discrediting tbe verdict which was based principally on tbe testimony of Mrs. Carter. Indeed, her identification of tbe prisoner was clear, direct, and positive. We are aware of no recognized theory upon which tbe trial judge should have assumed, or upon which this Court should now assume, as a matter of law that tbe testimony attacked by tbe prisoner was either imaginary or fallacious.

There was no error in tbe court’s denial of tbe motion to dismiss tbe action.

In addressing tbe jury, counsel for tbe private prosecution used language indicating that tbe wife of tbe prisoner knew what clothes tbe prisoner bad worn on tbe night of tbe homicide, thereby intimating, it is contended, that she bad not testified in bis behalf. Attention bas frequently been called to tbe fact that remarks of this character justify tbe award of a new trial in case of conviction unless tbe error is cured by tbe prompt action of tbe court. Upon objection by tbe prisoner, tbe court stopped tbe argument, directed tbe attorney to desist, and instructed tbe jury not to be influenced by tbe remarks to which objection bad been made. In bis .charge bis Honor specifically instructed tbe jury to exclude from their minds everything except the evidence and tbe law as declared by the court.

Tbe same counsel suggested, also, that tbe prisoner bad not testified in bis own behalf by saying to the jury that tbe prisoner knew whether be bad been in tbe automobile below tbe Dix home; but again tbe court promptly interposed. It is admitted in tbe prisoner’s brief that .the argument was stopped; and thereafter, at least three or four times in tbe charge, tbe court plainly instructed tbe jury not to permit tbe *406prisoner’s failure to testify to prejudice tbeir minds against bim; tbat be was presumed to be innocent; and tbat tbe State bad tbe burden of proving bis guilt beyond a reasonable doubt.

According to tbe decisions of tbis Court tbe error of counsel in referring to tbe prisoner’s declining to testify was cured by tbe immediate action of tbe court and tbe emphatic and repeated instruction given to tbe jury. *S. v. Harrison,*145 N. S., 408. In tbis case it is said: “We undertake to correct tbe errors of tbe judge and not those committed by attorneys. Tbeir errors are to be corrected by tbe trial judge, and when be fails in bis duty it becomes a ground of exception.” So, also, as to tbe intimation tbat tbe prisoner’s wife bad not testified in bis behalf. Tbe court instantly suspended tbe argument and afterwards instructed tbe jury to disregard everything but tbe evidence and tbe law. Tbe course thus taken conforms to tbe principle laid down in *S. v. Spivey,*151 N. C., 676. Tbe comment of counsel was improper, but as said in tbe case last cited bis Honor fully corrected tbe error.

On tbe evening of 8 May, at about 9 o’clock, tbe prisoner went to tbe borne of Reeves Cooper and put bis car in tbe shed. He left it there and immediately went away; be did not return. Tbat night tbe car was seized by an officer. Tbe description of it agreed in details with tbat of tbe car tbat bad been stopped in front of tbe store on tbe evening of tbe homicide. Meanwhile no change bad been made in its contents. Tbe officer found in it tbe gun, tbe shells, and tbe implements above described. He testified to tbis effect and the prisoner excepted.

Tbe exception is without merit. Evidence of tbis character is admissible on tbe principle tbat it tends to show a design or plan. Tbe existence of such design or plan may be proved circumstantially as well as by direct utterance. In Wigmore on Evidence, it is said tbat in tbe production 'of such proof two sorts of circumstantial evidence are available: (1) Conduct as indicating tbe inward existence of a design; (2) prior or subsequent existence of tbe design, as indicating its existence at tbe time in question. Accordingly, “tbe acquisition or possession of instruments, tools, or other means of doing tbe act is admissible as a significant circumstance; tbe possession signifies a probable design to use; tbe instruments need not be such as are entirely appropriate, nor such as were actually put in use.” Yol. 1, secs. 88, 237, 238. Bishop says tbat it is competent to prove tbe possession of tools by a person charged with crime, even those not adapted to tbe crime if found with others which are adapted to its commission; and, according to Underbill, all tbe details of tbe finding may be proved, it being immaterial tbat tbe tools found were not adapted to tbe commission of a specific act. 3 Bishop’s New Grim. Procedure, sec. 151; Underbill’s Grim. Evidence, sec. 570.

*407If the gun, tbe shells, and the several implements in the prisoner’s car had been discovered immediately after the homicide, evidence of the fact would unquestionably have been competent; and under the principles stated above the discovery a few days afterwards is not so remote as to impair its competency, the probative force of which was submitted to the jury.

These significant facts should be kept in view: The prisoner owned the car; some of the tools were suitable for use in burglary; the gun and shells, for use in burglary or robbery. A difference in the use to which the various articles were adapted does not preclude the admission of proof that they were in the prisoner’s possession.

The indictment contains two counts, the first charging the essential facts of murder as required by C. S., 4614, the other charging murder committed in the perpetration of or in the attempt to perpetrate robbery. The prisoner excepted to an instruction referring to murder committed in the perpetration of robbery “or other felony.” The first count in the indictment is sufficient; it contains “every averment necessary to be made.” *S. v. Arnold,*107 N. C., 861; *S. v. R. R.,*125 N. C., 666. The instruction complained of was relevant upon the matters involved in the first count.

"We have considered the prisoner’s exceptions with care, and find no error in the trial. In no view of the evidence was there any provocation on the part of the deceased, who was ruthlessly slain while in the prosecution of his daily task. The doctrine of manslaughter was eliminated, the question being whether the prisoner was guilty of murder in the first or second degree, or not guilty.

No error.

BbogdeN, J., dissents.