#### STATE v. LANCEY STERLING and GEORGE DAVIS.

(Filed 10 December, 1930.)

1. Criminal Law G i: G x> — Testimony that when arrested defendant had appearance of having recently shaved held competent on question of identity.

Where the identity of the defendant is at issue on a trial for murder as the one who entered a store and shot and killed the deceased while attempting to rob a cash drawer, evidence of the State's witness that she saw him shoot the fatal shot and that he .had a beard ofi several days’ growth, who later hesitated in again identifying him upon seeing him *19shaved, and of another witness, the officer who made the arrest an hour or so later, that he then appeared as one who had hastily shaved with cold water, is competent as a short-hand statement of a collective fact, and not objectionable as inexpert opinion evidence.

2. Homicide B a — Evidence that crime was 'murder in first degree held sufficient.

Evidence tending to show that the prisoner with another entered a store with intent to rob its cash drawer, and shot and killed the deceased is of an attempt to commit a felony and sufficient to sustain a verdict of murder in the first degree, C. S., 4200, under proper instructions from the court thereon upon conflicting evidence.

3. Criminal Law *L*e — ^Slight inaccuracies in charge, not brought to court’s attention in apt time, held not to entitle defendant to new trial.

Slight inaccuracies in the statement of the evidence in the instructions of the court to the jury will not be held for reversible error when not called to the attention of the judge at the time and the charge substantially complies with C. S., 564.

Appeal by defendants from Granmer, *J.,*at March Term, 1930, of New HaNovee.

No error.

The defendants in this action were tried on an indictment in which they were charged with the murder of John Brown, deceased.

The evidence for the State tended to show that shortly before 11 o’clock, on the night of 4 January, 1930, two men — one a tall yellow negro, the other a small black negro — entered a store in the city of Wilmington, N. C., for the purpose of robbery. The only person in the store when they entered was John Brown, who was employed therein as a clerk. His father, William Brown, was the owner of the store. When the men entered the store John Brown was behind a counter, near the money drawer.

Miss Georgia Brown, a sister of John Brown, testified that she went into the store at about 11 o’clock to speak to her brother. The only persons in the store at this time were John Brown and the two' negro men. She saw the tall yellow negro standing in front of her brother, with a pistol in his hand. The counter was between them. The small, black negro was behind the counter, walking in the direction of the money drawer. When she realized the situation, Miss Brown exclaimed to her brother, “John, what is the trouble?” Before he could reply, the tall yellow negro shot him with the pistol. Miss Brown then ran to her brother, saying, “John, have they hurt you?” He replied, “Yes, Georgia; run before they shoot you.” When the pistol was fired by the tall yellow negro, the small black negro ran from behind the counter, and out of the store. As Miss Brown started to the telephone in the store, the tall yellow negro followed her, with a bag in his hands. Ap-*20pretending that he was about to assault her, she screamed, and he ran out of the store. Both men escaped, and Miss Brown called the police headquarters over the telephone. When the officers arrived at the scene, they found that John Brown had been mortally wounded. They took him to the hospital, where he died soon after his arrival there. His death was the result of the wound, caused by the pistol fired by the tall yellow negro, while the small black negro was behind the counter, going in the direction of the money drawer.

Miss Brown testified that she had never seen either of the men whom she saw in the store at the time her brother was shot, before the night of the homicide. However, while testifying at- the trial, she identified the defendant, Lancey Sterling, as the tall yellow negro who shot her brother. She said, “I now identify the defendant, Lancey Sterling, as the man who shot my brother.”

This defendant was arrested on Sunday morning, between 8 and 9 o’clock, because of the description given to the officers by Miss Brown the night before, immediately after the homicide, of the man who shot her brother. When she first saw the defendant in the custody of the officers, at the jail, she hesitated to identify him positively, because he did not then have a beard. She had stated to the officers, and so testified at the trial, that the man who shot her brother had a beard, apparently of three or four days growth, on his face. There was evidence tending to show that the defendant went to his home on the night of the homicide after 12 o’clock; and that between this time and the time of his arrest the next morning, he had shaved himself. One of the officers, who arrested the defendant at the home of his mother, testified that his face, at the time of the arrest, “appeared to be the face of a man who had taken a hasty shave with a dull razor in cold water.”

Miss Brown testified that she could not identify the defendant, George Davis, as the small black negro whom she had seen behind the counter, going in the direction of the money drawer, when she went into the store on the night of the homicide, and who ran out of the store, when the pistol was fired. She had never seen this man before, and could only testify that he was a small black negro.

Ben Johnson, a witness for the State, testified that he had known the defendant, George Davis, for about fifteen years — for about three years in the city of Wilmington, and prior to that time in South Carolina and Georgia. He saw the defendant on Sunday morning after the shooting of John Brown on Saturday night. The defendant then told the witness that Mr. Brown’s son, John, had been shot and killed in his father’s store the night before. The witness next saw the defendant in Wilmington on the following Wednesday evening at about 6 o’clock. On this occasion the defendant told the witness that lie was in the store when *21Jobn Brown was sbot; tbat be bad met a man on tbe street near tbe store tbat nigbt; tbat in consequence of bis agreement witb tbis man, be went witb bim to tbe store; tbat tbe man beld np Jobn Brown with a pistol, and tbat be bad started behind tbe counter to get tbe money from tbe money drawer; tbat then tbe girl came in, tbe man fired bis pistol, and be got scared and ran out of tbe store.

Joe Nick Byrd, a witness for tbe State, testified tbat be bad known the defendant, George Davis, for about two months before tbe homicide; that on tbe nigbt of tbe homicide tbe defendant was at bis store, from about 8 o’clock until some time after 10 o’clock; tbat soon after 8 o’clock tbe defendant went to Mr. Brown’s store, which is near tbe witnesses’ store, on an errand for tbe witness; tbat be returned to witnesses’ store and remained there until about 10 o’clock; tbat about 10 o’clock defendant went on another errand for witness, and returned at about 11:30, and tbat be remained at bis store for several hours after bis return. Tbe witness first beard of tbe homicide at about 12 :30 tbat nigbt. Tbe witness could not say whether or not tbe defendant was at bis store when some men came in and told about tbe homicide; be could not remember as to tbis.

Tbe defendant, George Davis, was arrested at a lumber camp several miles from tbe city of Wilmington, on Wednesday or Thursday nigbt after tbe homicide. Tbe arrest was made because of information received by tbe officers as to bis statement to Ben Johnson. After tbe arrest tbe defendant was taken to tbe jail in tbe city of Wilmington, where a warrant charging bim witb tbe murder of Jobn Brown was served on bim. Tbe officer who served tbe warrant testified tbat after be bad read it to tbe defendant, tbe defendant said, “My God, Mr. Tindall, what do you think they are going to do witb me?” Tbe officer replied tbat be did not know. Tbe defendant then said, “I didn’t kill tbe man.” Subsequently, while confined in jail, tbe defendant, in tbe presence of tbe defendant, Lancey Sterling, said to tbe officers, “Lancey Sterling is tbe man who shot Jobn Brown.” Lancey Sterling replied, “I have not sbot anybody.” Tbe defendant then said, “You did; you have tbe same cloth around your bead now tbat you bad on your bead tbe nigbt you sbot bim.”

Tbe defendant, George Davis, did not testify as a witness at tbe trial.

Tbe defendant, Lancey Sterling, testifying in bis own behalf, denied tbat be shot Jobn Brown, and denied tbat he was in tbe store when Jobn Brown was sbot. He testified tbat on tbe nigbt of tbe homicide be was at bis mother’s home in tbe city of Wilmington from about 10 o’clock until after 12, when be went to bis borne. He offered tbe testimony of several witnesses as evidence in support of bis alibi. He testified tbat when tbe defendant, George Davis, said in bis presence and in *22tbe presence of tbe officers, that be was tbe man wlio shot John Brown, be replied to bim, “For God’s sake, look at me. I never saw you before in my life.”

At tbe conclusion of all tbe evidence, and after tbe charge of tbe court to tbe jury, tbe jury returned tbe verdict appearing in tbe record, to wit: “Guilty of murder in tbe first degree, as to botb defendants.”

From tbe judgment tbat eacb defendant suffer death by means of electrocution, as provided by statute, botb defendants appealed to tbe Supreme Court.

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

*George Rountree, Jr., for defendants.*

*John Q. LeGrand and Newman & Sinclair assigned by the Court for defendant, George Davis.*

Connor, J.

Miss Georgia Brown, sister of tbe deceased, John Brown, and tbe only witness for tbe State, as shown by all tbe evidence, "who was present at tbe time tbe deceased was shot and killed, testified that tbe man who shot and killed tbe deceased bad a beard, of apparently three or four days growth, on bis face. All tbe evidence was to tbe effect tbat at tbe time of bis arrest, which was within a few hours after tbe homicide, tbe defendant, Lancey Sterling, who was identified by Miss Brown as tbe man who shot her brother, bad no beard on bis face. Tbe evidence for tbe State tended to show tbat be bad recently shaved. Tbe evidence for tbe defendant was to tbe contrary. One of tbe officers who made tbe arrest, in bis direct testimony, said: “Lancey’s face appeared to me as tbe face of a man tbat bad taken a hasty shave with a dull razor in cold water.”

Tbe case on appeal does not show tbat this statement was made by the witness in response to a specific question addressed to tbe witness by tbe solicitor. The record shows tbat counsel for defendant objected to tbe statement, saying: “Tbat is merely an opinion.” To this tbe court replied: “Tbat is what has been called a shorthand statement of facts.” To this defendant excepted. His assignment of error based on this exception cannot be sustained. As was said in *S. v. Skeen,*182 N. C., 844, 109 S. E., 71, this was only a shorthand method of giving the facts as they appeared to tbe witness. In tbat case, tbe statement of tbe witness, in describing tbe appearance of tbe defendant, was, “His clothes were damp — shoes muddy — looked like. Didn’t look like they bad been unlaced in several days.” It was held tbat it was proper for tbe witness to state tbe instantaneous conclusion of bis mind, from bis observation of a variety of facts presented to bis senses at one and the same time. *23Tbe principle is stated and approved in *Willis v. New Bern,*191 N. C., 507, 132 S. E., 286. See, also, *S. v. Gray,*180 N. C., 697, 104 S. E., 647; *S. v. Bryant,*178 N. C., 702, 111 S. E., 430; *S. v. Harden,*177 N. C., 580, 98 S. E., 782; S. *v. Spencer,*176 N. C., 709, 97 S. E., 155; *S. v. Leak,*156 N. C., 643, 72 S. E., 567. In tbe last ease cited, tbe principle as stated in McKelvey on Evidence, p. 220, *&i seq.,*is approved by tbis Court. On tbis principle there was no error in overruling defendant’s objection to tbe statement of tbe witness on tbe ground that it was merely an expression of bis opinion. In passing upon tbis assignment of error, we interpret tbe record as showing in effect that defendant’s counsel moved to strike out tbe statement, and that tbe motion was denied.

Tbe sole question involved in tbe issue submitted to tbe jury at tbe trial of tbis action was one of identity. Tbe uncontradicted evidence for tbe State shows that tbe homicide was murder. There was no evidence tending to show that tbe homicide was manslaughter, or that it was justifiable or excusable. All tbe evidence showed that the murder was committed in an attempt to perpetrate a felony, to wit, robbery. Tbe homicide was, therefore, murder in tbe first degree, as defined by statute. C. S., 4200. On tbe authority of *S. v. Spivey,*151 N. C., 676, 65 S. E., 995, approved' in *S. v. Newsome,*195 N. C., 552, 143 S. E., 187, tbe court might well have so instructed tbe jury, leaving tbe question as to tbe guilt of tbe defendants to be determined by tbe jury, under tbe instructions of tbe court, from tbe evidence. There was conflicting evidence as to tbe identity of tbe defendants, as tbe men who committed tbe murder, while attempting to perpetrate a robbery. Tbis evidence was submitted to tbe jury under a charge which we find free from error. Slight inaccuracies in tbe statement of tbe evidence by tbe court in its charge to tbe jury, not called to its attention at tbe time, cannot be held as prejudicial error. In tbe instant case tbe charge was in substantial compliance with C. S., 564. Tbe contentions of each defendant, as well as those of tbe State, upon tbe conflicting evidence, were fully and fairly stated by tbe court. Tbe verdict is fully supported by tbe evidence, and we find no error in tbe record, for which either defendant is entitled to a new trial. Tbe judgment is affirmed.

No error.