#### STATE v. ANDREW WILSON FARRELL.

(Filed 12 January, 1944.)

1. Criminal Law §§ 16, 17—

A plea to an indictment is not a matter of form, but of substance, and in a capital case the arraignment should appear of record.

2. Same—

It is not the practice in this jurisdiction to require a prisoner to plead more than once to a single indictment, even where there is more than one trial. A second arraignment and plea *is held*to be immaterial.

3. Criminal Law §§ 30, 34a, 41f—

There is a distinction between the statement made by a prisoner on his preliminary examination before a magistrate under C. S., 4561, and his testimony given under C. S., 1799, as a witness on the trial of the cause. On the former, he is to be advised of his rights, the examination is not under oath, and, should it be taken contrary to the statute, it may not be used against him at the trial. On the latter, the accused, at his own request, but not otherwise, is competent but not compellable to testify and his testimony thus given is under oath and may be used at any subsequent stage of the prosecution.

4. Constitutional Law § 29: Criminal Law §§ 30, 34a—

The constitutional inhibition against self-incrimination, Art. I, sec. 11, is directed against compulsion, and not against voluntary admissions, confessions, or testimony freely given on the trial. Such statements, confessions, and testimony voluntarily given on a former trial are received against the accused as his admissions.

5. Criminal Law § 41f—

When the accused in a criminal prosecution avails himself of the privilege of testifying in his own behalf, he assumes the status of any other witness, with all the advantages and disadvantages that status may entail: but his failure to take the stand creates no presumption against him and is not a proper subject for comment before the jury.

6. Criminal Law § 53a—

The court’s charge to the jury is to be considered in its entirety and contextually.

7. Criminal Law §§ 2, 5c—

Evidence, which shows no more than a temporary lapse of moral perception, is insufficient to excuse a crime as distinguished from reducing it to a lower grade, where some specific intent is 'required, *e.g.,*premeditation and deliberation.

Appeal by defendant from *Grady, Emergency Judge,*at September Criminal Term, 1943, of DURHAM.

Criminal prosecution tried upon indictment charging the defendant with rape.

*805Tbe record discloses tbat on tbe morning of 23 March, 1943, tbe defendant went to tbe Edgemont School in tbe city of Durham and falsely represented to tbe principal tbat bis stepdaughter, a child eight years of age, was needed at home on account of tbe illness of her mother, when in reality tbe mother of tbe child was away at tbe time. Tbe defendant took bis stepdaughter home, made her drink some whiskey, and then ravished her.

Tbe defendant was immediately arrested and placed in jail. Tbe grand jury, then in session, promptly returned a true bill, and counsel was appointed to represent him. He was arraigned at tbe March Term, 1943, Durham Superior Court, and tried at tbe March-April Special Term, 1943. Tbe defendant interposed a plea of insanity or mental irresponsibility at tbe time of tbe alleged ofíense. He took tbe stand and testified in bis own behalf. From an adverse verdict and sentence of death, be appealed to tbe Supreme Court, and was awarded a new trial, case reported *ante,*321.

On tbe second trial at tbe September Term, 1943, Durham Superior Court, tbe prosecution offered evidence sufficient to make out its case and rested. Tbe defendant then offered a number of witnesses in support of bis plea of insanity or mental irresponsibility, but did not again take tbe stand or become a witness in bis own behalf. In rebuttal, and over objection, tbe solicitor offered tbe defendant’s testimony taken at tbe former trial, in which be stated “I am not in a position to deny it. . . . I done these things. ... I know tbat now I face tbe chair or gas chamber. ... I do beg for mercy from everybody and G-od Almighty especially. ... I have no recollection whatever of having' committed this crime. . . . Got off from work about 1:00 a.m.; went home and bad a few drinks. ... I was drinking pretty heavy. . . . About 9 :30 or 10 :00 a.m. went to some pool parlor, I am not positive which one, and bought a chaser. ... I start in on tbe bottle of whiskey tbat I have and I don’t know then what happened.” Exception.

Tbe jury rejected tbe defendant’s plea of insanity or mental irresponsibility, despite tbe substantial evidence offered in bis behalf.

Verdict: “Guilty of rape as charged in tbe bill of indictment.”

Judgment: Death by asphyxiation.

Tbe defendant appeals, assigning errors.

*Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.*

*R. H. Sykes and Powell Ac Lewis for defendant.*

Stacy, C. J.

We have here for determination, (1) tbe sufficiency of tbe arraignment, (2) tbe competency of tbe defendant’s testimony taken *806at the former trial as evidence against him, and (3) the correctness of the charge.

First, in respect of the sufficiency of the arraignment, it will be noted that a true bill was found by the grand jury at the March Term, 1943, Durham Superior Court, at which term the defendant was duly arraigned and entered a plea of not guilty. He was thereafter tried at the March-April Special Term, 1943, Durham Superior Court, and convicted. From this conviction he appealed to the Supreme Court and was granted a new trial, case reported *ante,*321.

The case was again called at the September Term, 1943, Durham Superior Court, and the record recites, “the defendant . . . and his counsel, . . . being present in open court and announcing their readiness for trial enters a plea of not guilty.” There was no suggestion that the defendant should be rearraigned. He had already been arraigned at the March Term, 1943, and' entered his plea of not guilty. It is not the practice in this jurisdiction to require a prisoner to plead more than once to a single indictment. Indeed, in *S. v. Watson,*209 N. C., 229, 183 S. E., 286, the defendant there questioned the propriety of a second arraignment, which was held to be immaterial. So, here, the defendant’s nonexceptive assignment of error to the sufficiency of the arraignment must be dismissed as pointless. It was obviously made out of the abundance of caution.

True, it has been said that a plea to the indictment is not a matter of form, but of substance, *S. v. Cunningham,*94 N. C., 824, and that in capital cases, the arraignment should appear of record. *S. v. Beal,*199 N. C., 278, 154 S. E., 604; *Johnson v. United States,*225 U. S., 405. Here it does appear that the defendant was duly arraigned and entered a plea of not guilty at the March Term, 1943. His second trial was on the same bill. No new or additional bill was returned by the grand jury. The assignment of error based on this part of the record cannot be sustained. *S. v. Ferrell,*205 N. C., 640, 172 S. E., 186.

Second, as *to*the competency of the defendant’s testimony *taken*at the former trial, which was offered by the State after the defendant had closed his case without himself going on the witness stand, it is to be noted the defendant testified on the original hearing at his own request and under the advice of counsel. He was not compelled to testify either at the former trial or at the present trial, albeit “at his own request, but not otherwise,” and without prejudice if he failed to avail himself of the privilege, he was competent to testify at either or both trials. C. S., 1799; *S. v. Dee,*214 N. C., 509, 199 S. E., 730; *S. v. Tucker,*190 N. C., 708, 130 S. E., 720; *S. v. Bynum,*175 N. C., 777, 95 S. E., 101.

There is a distinction to be observed between the statement made by a prisoner on his preliminary examination before a magistrate under C. S., *8074561, and bis testimony given under C. S., 1799, as a witness on tbe trial of tbe cause. *S. v. Hawkins,*115 N. C., 712, 20 S. E., 623. On tbe former, be is to be advised of bis rights, and sucb examination is not to be on oatb. On tbe latter, tbe accused, at bis own request, but not otherwise, is competent but not coanpellable to testify, and, of course, bis testimony thus given is received under tbe sanction of an oatb. 20 Am. Jur., 473.

It has been held in a number of cases that where tbe examining magistrate takes tbe preliminary statement of a prisoner under tbe compulsion of an oatb, contrary to tbe provisions of O. S., 4561, and without tbe advice of counsel, sucb statement may not be used against him on tbe trial, because, being thus induced, it is deemed to be involuntary. *S. v. King,*162 N. C., 580, 77 S. E., 301; *S. v. Vaughan,*156 N. C., 615, 71 S. E., 1089; *S. v. Parker,*132 N. C., 1014, 43 S. E., 830; *S. v. Young,*60 N. C., 126; *S. v. Matthews,*66 N. C., 106; *S. v. Broughton,*29 N. C., 96, 45 Am. Dec., 507. Tbe reasons in support of this position are fully set forth in *S. v. Parker, supra; S. v. Broughton, supra;*and *People v. McMahon,*15 N. Y., 384. But these cases have no application to tbe testimony of a defendant given voluntarily as a witness in bis own behalf under C. S., 1799. *S. v. Hawkins, supra; Henze v. State,*154 Md., 332.

Tbe constitutional inhibition against compulsory self-incrimination, Art. I, sec.' 11, is directed against compulsion, and not against voluntary admissions, confessions, or testimony freely given on tbe trial. *S. v. Luquire,*191 N. C., 479, 132 S. E., 162. Sucb statements, confessions, and testimony voluntarily given on a former trial are received against tbe accused as bis admissions. *S. v. Melton,*120 N. C., 591, 26 S. E., 933; 16 C. J., 630. Tbe test in every case is whether tbe “admission” was voluntary. *Henze v. State, supra.*

To say that tbe testimony of tbe accused on tbe former trial is deemed to be involuntary, because given under tbe sanction of an oatb, would seem to carry tbe presumption too far. If this were so, it could with equal plausibility be contended that tbe first jury before whom tbe defendant testified should not consider bis testimony, because involuntary. S*. v. Eddings,*70 Mo., 545, 36 Am. Rep., 496. On tbe contrary, tbe defendant offered himself as a witness on tbe former trial for tbe very purpose of having tbe jury consider bis testimony in determining bis guilt or innocence. "What be said then may be used at any subsequent stage of tbe prosecution. *S. v. Simpson,*133 N. C., 676, 45 S. E., 567; *People v. Arnold,*43 Mich., 303, 38 Am. Rep., 182; 1 Thompson on Trials, see. 647; 16 C. J., 569.

Speaking to tbe subject in *Bess v. Commonwealth,*118 Ky., 858, it was said: “A defendant cannot be made to give evidence against him*808self. A failure to testify for bimself cannot be commented on or used against Mm on Ms trial. Wien be does become a witness for himself, he occupies the position of any other witness introduced on the trial. To prove on the last trial what he said voluntarily in giving his evidence on the former trial is not making Mm give evidence against himself, nor is it commenting upon his failure to testify for himself. To admit such evidence is not violative of the Constitution, which protects one from being forced to give evidence against himself, nor of the law which protects him from being prejudiced by having failed to testify for himself. Neither the organic nor statutory law was intended to relieve the accused of the incriminating effect of voluntary statements which he may have made out of court or in court, when he voluntarily went upon the witness stand in his own behalf.”

To like effect is the decision in *Miller v. People,*216 Ill., 309, where, as stated in the first headnote (which accurately digests the opinion), it was held: “Admissions and statements made by the accused when testifying as a witness in his own behalf on a former trial may be proven by the People on a subsequent trial, although the accused does not testify on the latter trial.”

There is no compulsion resting on a defendant to testify in a criminal prosecution. He is at liberty to take the stand in his own behalf or not, just as he may elect or be advised, and his failure to testify creates no presumption against him and is not a proper subject for comment by counsel in arguing the case to the jury. *S. v. Tucker, supra.*When he chooses to avail himself of the privilege, however, he assumes the status of a witness, with all the advantages and disadvantages that status may entail. *S. v. Griffin,*201 N. C., 541, 160 S. E., 826. Of course, it is proper f.or the jury to consider that he is the defendant in the case and on trial for the crime charged. *8. v. Dee, supra.*The statements or admissions made by Mm while so testifying are in nowise privileged, but may lawfully be offered in evidence on any subsequent trial for the consideration of the jury in passing upon his guilt or innocence. *S. v. Simmons,*18 Kan., 852; *S. v. Kimes,*152 Iowa, 240; *Mackmasters v. State,*83 Miss., 1; *Henze v. State, supra.*The exception addressed to the admission of the evidence is not sustained.

Third, as bearing on the correctness of the charge, the rule that what the court says to the jury is to be considered in its entirety and contextually would seem to save it from successful challenge. *S. v. Smith,*221 N. C., 400, 20 S. E. (2d), 360.

The exception stressfully urged as valid is the one addressed to the instruction that “there is no evidence to justify the jury in finding the defendant insane so far as the drinking habit is concerned.” *S. v. Hairston,*222 N. C., 455, 24 S. E. (2d), 342. The only evidence on this *809point is that contained in tbe defendant’s testimony taken on tbe former trial, wbicb discloses that be “bad a few drinks,” or was “drinking pretty heavy,” at tbe time and did not know what happened or bad no recollection of having committed tbe crime. Another witness testified that be went borne with tbe defendant around' 8 o’clock in tbe morning “and they drank about a quart of whiskey.” Tbe principal of tbe school said tbe defendant called for tbe little girl about 11 o’clock; “that be seemed normal and altbougb I got witbin three feet of bim and talked with bim, I did not detect tbe odor of aleobol.” Tbis, at most, shows no more than a temporary lapse of moral perception wbicb was held in *S. v. Sewell,*48 N. C., 245, and again in *S. v. Potts,*100 N. C., 457, 6 S. E., 657, to be insufficient to excuse a crime as distinguished from reducing it to a lower grade where some specific intent is required, *e.g.,*premeditation and deliberation. *S. v. Alston,*214 N. C., 93, 197 S. E., 719. Here, no contention was made in respect of “a less degree of tbe same crime,” C. S., 4640, or that tbe less-aggravated assaults included in tbe bill should be submitted to tbe jury, C. S., 4639, as all tbe evidence shows carnal knowledge and abuse of a female child under the age of twelve years. C. S., 4204. *S. v. Hairston, supra; S. v. Jackson,*199 N. C., 321, 154 S. E., 402. Indeed, tbe unnaturalness of tbe defendant’s conduct and tbe enormity of bis crime were urged as circumstances in support of bis plea of insanity or mental irresponsibility, wbicb tbe jury rejected. *S. v. Alex Harris, ante,*697.

A searching investigation of tbe entire record leaves us with tbe impression that tbe case has been tried in substantial conformity to tbe decisions on the subject and that tbe result accords with tbe law’s-command. Tbe conclusion, therefore, is that tbe verdict and judgment should be upheld. It is so ordered.

No error.