The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-12-10
AsImPoggssr nECIsEnF.
The gupreme court Defines the g wo
sfg.rees Of Busaer.

Dsarees Of Murder.
State vs.. William Gadberry, (appel-
lanD from Yadkin county. 0pin-
ion by Furches, j.
The prisoner had made threats
against the life of the deceased and had
sworn that if she did not go to Virginia
with him he would kill her. The de-
ceased refused to go with the prisoner,
who grabbed her by the arm and
pushed her before him up the road,
and upon her resistance and cries for
help, shot her in the back with a pis-
toll. The prisoner offered no evidence.
The court instruced the jury, after re-
citing all the evidence, that if they be-
lieyed the evidence to he true beyond
a reasonable doubt, the prisoner was
guilty of murder in the first degree.
There were no exceptions TO evidence.
The court explained 10 the jury the
degrees of murder and also stated that
the credibility of the evidence was a
question peculiarly for the jury and
that in a case of this Importance the
Jury should exercise great care and
weigh the evidence we'll and be fully
convinced of its truth before con-
victing. There was verdict of MUIR
der in the first degree. Held, that the
Act of 1898, which divides murder into
two degrees, by its express terms
makes it within the sole province of
the jury to determine the degree, and
this imperative duty cannot be taken
away from them by the Court, as is
done in the above charge
Error. Nenire de noyo.
Avery, j., concurring: 1t is neces-
sary. in order to convict of murder in
the first degree, that the jury should
have found either a premeditated in
tent to commit the murder, or an in
tent to abduct the deceased; and the
finding of such intent is exclusively
for them Whenever the intent is of
the essence of the offence and the
jury fail in a special verdict to state
specifically that there was criminal
intent, the Judge is not at liberty to
supply the defect before stating the
conclusion of the law; q fortiori, where
the jury retain the right TO state the
verdict in the shape of conclusion,
he cannot do before what he could not
do after,-assume that the facts prov
ed a guilty intent. Hence the Court
should have charged that if the jury
should find from the testimony that
there was either premedItated intent
ON the part of the prisoner to XII or
that he killed while he was attempting
to carry out purpose to abduct, they
would be warranted in returning
verdict of guilty of murder in the flrst
degree: but if they were not satisfied
as TO the existence of either the pre-
meditated purpose to kill or the intent
TO abduct and they believed that he
killed with a deadly weapon, then the
law raises presumption OF murder IN
the second degree and that presump-
ton had not been rebutted.
Clark. j., dissenting: There are re-
peated decisions in our court, not rest
ing upon presumption from the use OF
deadly weapon, approving charge
that if the jury believes the evidence
the defendant is guilty OF murder.
State VS. Baker, 90 \. {. 276. HIS
Honor did not instruct the jury TO
convict. but simply told them that
this state of facts, if found beyond a
reasonable doubt to be true, would
constitute murder in the first degree,
lust as he would have gone on, II there
had been conflicting evidence, to m
struct them that another state OF
facts If believed would have constr
tuted murder in the second degree, and
still another, manslaughter The ex-
act point presented in this case mas
bean recently decided in State VS.. Gll-
christ, 113 N c., 673, constituting the
Act of 1898, CHI SIS, dividing the CRIME
of murder into two degrees. In that
case the judge charged in almost the
very words used by the judge IN TINS,
telling the jury that the prisoner upon
the evidence was guilty of murder III
the first degree or nothing. To the
same effect are three decisions upon
Oh. 434, Acts of 1889, dividing the crime
burglary into two degrees in which
the identical words are used as to the
duty of the jury, as in the act dividing
the crime of burglary into two degrees
in which the identical words are used
as to the duty of the jury, as in the act
dividing the crime of murder, and are
construed as in State VS.. Gilchrist, SUI
prn.
Montgomery, j., also dissents.