#### STATE v. FRANK BIRKMAN.

(Filed 2 April, 1930.)

Homicide G d — Where accused is without means, his failure to provide proper burial is incompetent as evidence of his having killed his wife.

In a prosecution of a husband for the murder of his wife evidence that he failed to provide or help purchase a coffin and clothes for the burial of the wife is incompetent as evidence of his guilt of her murder when it appears from uncontradicted evidence that the husband was out of a job and without means at the time, and an instruction to the jury that it might consider this circumstance in so far as it related to the defendant’s attitude toward his wife and so far as the jury thought it threw light upon what the defendant did to his wife is reversible error, and the judgment of second degree murder will be set aside and a new trial ordered on appeal.

OeimiNal action, before *Johnson, Special Judge,*at August Term, 1929, of Cumberland.

Tbe defendant was indicted for killing bis wife. Tbe evidence tended to show that tbe defendant and tbe deceased were married on 4 August, 1929. Tbe deceased died on tbe nigbt of 12 August, 1929. Tbe evidence tended to sbow tbat tbe deceased and ber busband bad bad some dispute on tbe afternoon of August 12tb, and tbat thereafter tbe deceased went to tbe room of Mrs. Sallie Andrews at tbe Palace Hotel in Fay-etteville, arriving there about 8:30 o’clock. Tbe defendant came to their room about 11:30 o’clock, and tbe deceased was lying' on tbe bed. “She jumped up off tbe bed and started fighting Frank, scratching bim in tbe face, and Frank bit ber somewhere between ber breast and her lower body (indicating between ber middle breast line and ber pelvis). . . . He struck ber like tbat (indicating a punch with tbe fist straight out in front, on level about elbows). When be bit ber she just crumpled down, ber bands, bead and all, just went down; she fell on tbe *546floor, and Frank picked ber up in bis arms and threw ber on tbe bed. . . . Frank pulled ber up further on tbe bed and put pillows under ber bead. He said, ‘Old lady, if you ain’t dead, I will beat bell out of you tomorrow.’ Tbe deceased said nothing else and became quiet. Later on in tbe night, after applying ice to ber bead and portions of ber body, a doctor was summoned who pronounced ber dead.”

There was evidence to tbe effect that tbe deceased bad been drinking. Tbe uncontradicted evidence was that tbe defendant bad no job at tbe time of bis wife’s death. His relatives were also without financial means. A sister of deceased, over tbe objection of defendant, was permitted to testify as follows: “I asked him (defendant) about putting ber in a casket, and be said be was not able and be could not get it, and I asked him if be could get bis people to help out, and'be said, ‘No, they were not able.’ I asked him about buying a pair of hose, and be said be did not have tbe money. Me and my father arranged for tbe funeral. Tbe body was carried to McColl to an undertaker’s office, and then we took ber borne. After tbe body got to McColl I did not see Birkman until tbe next morning. He was at Roy McLaurin’s office, in McColl. Roy McLaurin is tbe mayor. Frank did not have much, to say to me. He said we could go ahead and have tbe autopsy made, but that we would find out that she committed suicide. ... I didn’t go along with tbe body to South Carolina. It was not in a coffin. It was first taken to an undertaker’s office and arrangements made to put it in a casket, and then it was carried to my bouse. When tbe body got there it bad tbe same clothes on it. Other clothes were put on tbe body when we took ber back to tbe undertaker’s office.”

Tbe defendant was convicted of murder in the second degree and sentenced to a term of not less than four nor more than seven.years in tbe State’s prison.

From judgment pronounced tbe defendant appealed.

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

*Nimoclcs & Nimocks and Bullard & String-field for defendant.*

BbogdeN, J.

In arraying tbe contentions of tbe State, tbe trial judge stated to tbe jury: “Tbe State contends that bis conduct afterwards, in failing to provide bis wife a burial, according to tbe customs in civilized and enlightened communities, bis failure and refusal to provide suitable clothing, and to assume a tender attitude toward ber, is evidence from which you may infer, both, that be struck ber, and that at tbe time be entertained towards ber malice, at tbe time be struck ber.”

Thereafter, tbe trial judge instructed tbe jury: “Tbe fact that a woman has died and has been sent to South Carolina, under circum*547stances that may not appeal to you as being proper, is no ground for convicting tbe defendant. Tbat bas no place in tbe trial. You can consider those circumstances in so far as they relate to tbe attitude of tbe defendant toward bis wife, and in so far as you may think it throws light upon what be did to bis wife, if anything.”

Tbe uncontradieted evidence was to the effect tbat tbe defendant at tbe time of tbe death of bis wife was totally without financial means to purchase suitable clothing or provide a suitable and proper casket for bis wife. His failure to provide a casket and suitable clothing was used by tbe State not only as evidence of malice, but also as evidence tbat be struck tbe blow which caused tbe death of tbe wife. Tbe defendant denied tbat be struck bis wife, and tbe evidence does not disclose tbat there was any evidence of a blow found upon her body after her death. Tbe declarations, mental attitude or unnatural conduct of an accused may, in proper instances, be submitted to tbe consideration of a jury upon tbe question of guilt. *S. v. Brabham,*108 N. C., 793, 13 S. E., 217; *S. v. Wilcox,*132 N. C., 1120, 44 S. E., 625; *S. v. Lance,*149 N. C., 551, 63 S. E., 198; *S. v. Plyler,*153 N. C., 630, 69 S. E., 269; *S. v. Atwood,*176 N. C., 704, 97 S. E., 12.

However, there seems to be no legal support for tbe theory tbat tbe financial inability of an accused to provide a proper burial is evidence of guilt. If any evidence bad been offered tending to show tbat tbe defendant was financially able to provide a proper and decent burial for bis wife, and neglected and refused to do so, such circumstance might be competent and admissible, at least, upon tbe question of malice; but no such a situation is disclosed in tbe present record, and tbe defendant’s exception is sustained and a new trial awarded.

There are certain exceptions to tbe expert testimony relating to tbe force of tbe blow alleged to have been inflicted by tbe defendant. Portions of this testimony lie in tbe twilight zone of legal competency, but as a new trial must be bad, we deem it unnecessary to discuss them.

New trial.