State v. Matheson

*111 Denny, J.

Tbe first and second exceptions are based upon tbe failure of tbe trial court to exclude tbe testimony of Grover Bentley, tbe taxicab driver, in wbicb be testified to certain threats and statements made by tbe defendant. Tbis witness merely related wbat took place during tbe defendant’s efforts to evade arrest after killing tbe police officer, wbicb included threats made against tbe taxicab driver if be did not assist tbe defendant in escaping. These exceptions cannot be sustained.

S. v. Payne, 213 N. C., 719 , 197 S. E., 573 ;

S. v. Steele, 190 N. C., 506 , 130 S. E., 308 . Moreover, the defendant, without objection, testified to substantially tbe same facts as those testified to by tbe witness Bentley, to wbicb tbe defendant directs bis exceptions.

S. v. Gordon, 224 N. C., 308 , 30 S. E. (2d), 43 ;

S. v. Williams, 220 N. C., 455 , 17 S. E. (2d), 769 ;

S. v. Hudson, 218 N. C., 219 , 10 S. E. (2d), 740 ;

S. v. Hall, 199 N. C., 685 , 155 S. E., 567 .

Tbe third and fourth exceptions are to tbe refusal of bis Honor to sustain tbe defendant’s motion for judgment as of nonsuit at tbe close of tbe State’s evidence and renewed at tbe close of all tbe evidence. G. S., 15-173. Tbe appellant in arguing these exceptions contends there is no evidence of premeditation and deliberation on tbe part of tbe defendant, and therefore, tbe motion should have been allowed. We do not so bold. Tbe defendant admitted that be intentionally fired tbe gun wbicb resulted in tbe death of tbe deceased and offered no excuse or explanation in mitigation of bis act. Consequently, tbe court properly overruled tbe motion for judgment as of nonsuit.

S. v. Gay, 224 N. C., 141 , 29 S. E. (2d), 458 ;

S. v. Jones, 222 N. C., 37 , 21 S. E. (2d), 812 ;

S. v. Landin, 209 N. C., 20 , 182 S. E., 689 . Deliberation is not ordinarily capable of actual proof, but must be determined by tbe jury from tbe circumstances. There is no evidence of any provocation on tbe part of tbe deceased wbicb could have aroused tbe sudden passion of tbe defendant, but, on the contrary, tbe defendant in describing wbat took place immediately preceding tbe killing of tbe police officer, testified: “I did not want him to arrest me. He bad not mistreated me. He was kind to me. He didn’t display any force or any gun or any black jack.”

We think tbe evidence disclosed on tbis record, and set out somewhat in detail herein, is sufficient to sustain tbe verdict of murder in tbe first degree.

S. v. Brown, 218 N. C., 415 , 11 S. E. (2d), 545 ;

S. v. Hammonds, 216 N. C., 67 , 3 S. E. (2d), 439 ;

S. v. Burney, 215 N. C., 598 , 3 S. E. (2d), 24 ;

S. v. Bowser, 214 N. C., 249 , 199 S. E., 31 ;

S. v. Hawhins, 214 N. C., 326 , 199 S. E., 31 ;

S. v. Evans, 198 N. C., 82 , 150 S. E., 678 ;

S. v. Steele, supra; S. v. Dowden, 118 N. C., 1145 , 24 S. E., 722 .

*112 Tbe defendant was only fifteen years of age at tbe time be killed tbe deceased. It is extremely unfortunate that one so young should commit sucb a beinous crime. In tbe trial below, however, we find No error.