#### STATE v. JOHN ROBERT MYERS.

(Filed 9 March, 1932.)

1. Criminal Haw G 1 — Confession in this case heKl properly admitted in evidence.

The prisoner, held for murder, at first denied guilt and stated that at the time the crime was committed'he was riding in an automobile with two other men. Upon a search of his home by an officer certain articles connected with the crime were discovered, whereupon the prisoner told the officers where the pistol with which the crime had been committed could be found and confessed to the murder of the deceased. The officer to whom the prisoner confessed testified that he neither threatened the prisoner nor offered him any hope of reward but that he told the prisoner he had better tell the names of the two men with whom he said he was riding at the time of the crime so that they might be apprehended, and the prisoner’s brother suggested that “he had better go on and tell the truth”: *Send,*the statements, under the circumstances, were not an inducement for the prisoner to confess, and the admission of the confession in evidence was not error.

2. Criminal Paw I 1 — Where all evidence shows that crime was first-degree murder failure to instruct as to less degrees is not error.

Where upon a trial for murder all the evidence and inferences therefrom unquestionably tend to show that the deceased was killed by one lying in wait and for the purpose of robbery, with evidence tending to establish that the defendant had perpetrated the crime, and there is no evidence in mitigation of the offense, the evidence establishes the crime of murder in the first degree, C. S., 4200, and an instruction to the jury either to convict the defendant of murder in the first degree, if the evidence so satisfied them beyond a reasonable doubt, or to acquit the defendant is not error.

Appeal by prisoner from *Cranmer, J.,*at January Term, 1932, of Pitt.

No error.

The prisoner was indicted for the murder of R. II. Hodges and was convicted of murder in the first degree. From a judgment of death by electrocution he appealed, assigning error.

*352Tbe deceased was mortally wounded at nigbt while on bis way borne from bis store and died a few days afterwards.

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

*J. G. Lamer for prisoner.*

Adams, J.

Tbe prisoner neither testified nor offered witnesses in bis behalf. His right to remain silent and to rely on what be deemed tbe insufficiency of tbe evidence against him was explained and safeguarded by tbe court’s instruction to tbe jury.

Tbe State’s evidence reveals a confession made by tbe prisoner under tbe following circumstances: He was at tbe police station under arrest. He was told by tbe sheriff that be did not have to answer any questions, to do anything or to tell anything, and that what be said would be used against him. Tbe witness testified that be made no threat, offered no reward, held out no hope of reward, and that tbe prisoner’s statement was voluntary. At first- tbe prisoner denied any connection with tbe homicide and said that when it occurred be and two other Negroes bad gone in a Ford car across tbe river and down tbe creek. A few minutes afterwards tbe sheriff and tbe prisoner’s brother went to tbe prisoner’s bouse, searched it, and found a coat and a toboggan. Upon their return to tbe police station tbe prisoner told them “where to find tbe gun.” In tbe second search they found two pistols and a bunch of keys. Another search discovered a flashlight. Meantime tbe prisoner bad made a confession to tbe chief of police. This officer testified that be neither threatened tbe accused nor offered him any hope, nor suggested that it would be better for him to make a statement. Returning to tbe station, tbe sheriff asked tbe prisoner to repeat bis statement. Admitting that be bad stolen tbe pistols be pointed out tbe one with which tbe deceased bad been killed. When tbe pistols were shown him and tbe keys, which belonged to tbe deceased, be said, “I did it,” and related what be bad done. On tbe nigbt of tbe homicide be stole an Essex car, drove it to Pactolus, and parked it near bis victim’s place of business. He went into tbe store and said something about a pair of shoes, but made no purchase. He left tbe store, went to a lane near tbe home of tbe deceased, and there lay in wait. When tbe deceased came along tbe prisoner stopped him and demanded bis money. He “emptied bis pistol at Hodges,” caught him, and took bis money, bis keys, a flashlight, and some papers. He returned to tbe car and took tbe shells from tbe pistol. Unable to start tbe car, be left it and walked back towards Greenville.

When, in bis previous statement, be claimed that two other men were with him tbe chief of police remarked “You bad better tell who it was *353so we can get tbe other men”; and the prisoner’s brother suggested that “he had better go on and tell the truth.”

The exception to the admission of this evidence must be overruled. The conditions under which a confession should be admitted or excluded are pointed out in a number of our decisions. It should be excluded if it was “wrung from the mind by the flattery of hope or by the torture of fear”; by “some advantageous offer or by threats or actual force”; by the fear of punishment or the hope of escape. *S. v. Patrick,*48 N. C., 443; *S. v. Graham,*74 N. C., 646; *S. v. Sanders,*84 N. C., 729; *S. v. Whitfield,*109 N. C., 876; *S. v. Rodman,*188 N. C., 720; *S. v. Fox,*197 N. C., 478.

The confession in evidence was not made under the impulsion of hope or fear. The suggestion that the accused had better tell who the “other men” were or that he “had better go on and tell the truth” has no element of unlawful inducement. As said in *S. v. Harrison,*115 N. C., 706, “The rule which is generally approved is, that where the prisoner is advised to tell nothing but the truth, or even when what is said to him has no tendency to induce him to make an untrue statement, his confession in either case is admissible.” No promise was made to induce the confession, no threat was used to extort it. *S. v. Bohanon,*142 N. C., 695.

The trial judge instructed the jury to return one of two verdicts: an acquittal or a conviction of murder in the first degree. It is contended that the jury should have been permitted to return a verdict for murder in the second degree.

The statute provides that any murder which shall be perpetrated by lying in wait ... or shall be committed in the perpetration of or in the attempt to perpetrate robbery shall he deemed to be murder in the first degree. C. S., 4200. All the evidence tends unquestionably to establish these two elements. The prisoner waylaid the deceased, shot five times, inflicted a mortal wound, pursued the deceased, and robbed him of his property. By the terms of the statute he was guilty of murder in the first degree, or not guilty. In *S. v. Spivey,*151 N. C., 676, 685, the rule is stated as follows: “Where the evidence tends to prove that a murder was done, and that it was done by means of poison, lying in wait, imprisonment, starving, torture, or which has been committed in perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, and where there is no evidence and where no inference can fairly be deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of ‘guilty of murder in the first degree,’ if they are satisfied beyond a reasonable *354doubt, or of ‘not guilty.’” *S. v. Rose,*129 N. C., 575; *S. v. Dixon,*131 N. C., 808; *S. v. Newsome,*195 N. C., 552; *S. v. Sterling,*200 N. C., 18, 23. Tbe authorities have recently been reviewed and tbe principle upheld in *S. v. Smith,*201 N. C., 494. We find

No error.