STATE v. TURNER.

witness "upon his death-bed" said that the evidence which he had given upon the trial was untrue, the Court said: "It resembles those cases where the principal witness on a trial at law has been afterwards convicted of perjury in his evidence in that case. In such cases relief should be granted in some way or other." When the cause came on for hearing, upon argument by Gaston for and Ruffin against granting relief, Taylor, C. J., said: "And in a court of equity if new evidence is discovered which could not possibly be made use of in the first trial the Court will interfere. No evidence could have been given of the dying declarations of Jenks, wrung from him in an agony of remorse when he had no motive to misrepresent." It is true that the witness Walker, as a part of his dying declaration, denied his own guilt. This would, however, go to the value to be attached to his declaration regarding the innocence of the defendant. It is said that for a miscarriage of justice, such as indicated here, the defendant can apply to the Governor for pardon. I think that, so long as the cause is pending in the courts, there should be, and is, power in the judicial department to secure a fair, impartial trial. It is not pardon, but justice that the defendant asks. She insists that she is not guilty and that her conviction has been accomplished by the perjury of the principal witness, and that she is entitled to be tried in the light of his confession made on the gallows. To the suggestion that her relief is in executive clemency, I find no more conclusive answer than is given by Douglas, J., in Council's case, supra: "The argument that in criminal cases the pardoning power of the Governor fulfils the purpose of a rehearing, is purely ab inconveniento and, to my mind, does not meet the ends of justice. Pardon is an act of mercy, and so far from establishing the innocence of any one, presupposes his guilt. The Governor may restore him to his liberty, but not his character. What a defendant asks in a

STATE v. TURNER.

rehearing is that he may have a fair trial, and yet, no matter how clearly his innocence may appear, nor how great the error we ourselves may have committed, we can give him no relief." In a case like this, the Governor can be asked to pardon only because he believes the party not guilty. A new trial only gives the defendant an opportunity to have another jury, with the additional light, pass upon the question of his guilt. If this defendant is guilty of the crime charged, there is nothing in the case appealing to executive clemency. If she is not guilty, she does not need it. I fully concur in the wisdom of the principle that new trials in either civil or criminal cases should for newly-discovered evidence be granted with the utmost caution and only in a clear case. Under our rule no argument will be heard upon the motion. It is not probable, and I hope not possible, that another case appealing so strongly to the Court for a re-examination of the rule denying relief will come to us. That the motion is renewed after the repeated denial of power indicates that the profession, usually so ready to acquiesce in the decisions of the Court, does not give its assent to the conclusion reached upon this question. As for myself, "having fully stated what, in my opinion, is the correct principle of law, as it should have been declared, henceforth this decision shall be the law with me." Walker, J., in Hoggard v. Jordan, 140 N. C., 619.

WALKER, J., concurs in the dissenting opinion.

STATE v. BANKS.

STATE v. WILL BANKS.

(Filed April 30, 1907).

Indictment-Murder-Degrees of Murder-Statute

Malice-Premeditation.

1. Evidence is sufficient for a conviction of murder in the first degree under the statute as wilful, deliberate and premeditated, which tends to show: That defendant had threatened to kill deceased in upholding his son in not paying him some money; thereafter they disputed about the amount owed, and defendant threatened the deceased with a pistol; deceased was with his son and the defendant followed the son, struck at him; deceased caught him around the neck and the defendant fired upon him several times; then defendant cursed and said he would kill him, and fired again; deceased offered no resistance, and had a gun under his left arm; deceased was fired upon twice, and between the first and second firing walked away from the defendant some twenty steps, and was followed and again fired upon.

2. Revisal, sec. 3631, does not give a new definition of murder, but classifies its different kinds as they existed at common law, theretofore included in one and the same degree; to constitute malice required by the statute to make out a case of murder in the first degree, it is unnecessary to show personal ill-will or grudge between the parties, and it is sufficiently shown when there has been a wrongful and intentional killing of another without lawful excuse or mitigating circumstances.

3. No particular time is necessary to constitute premeditation and deliberation for the conviction of murder in the first degree under the statute, and if the purpose to kill has been deliberately formed, the interval which elapses before its execution is immaterial.

INDICTMENT for the murder of one Frank McMillan, tried before his Honor, Ward, J., and a jury, at May Term, 1906, Superior Court of ASHE County.

There was verdict of guilty of murder in the first degree, and from sentence thereon defendant apealed to the Supreme Court.

STATE v. BANKS.

Assistant Attorney-General for the State.

R. A. Doughton for the defendant.

HOKE, J. We have given the record and the exceptions noted our most careful consideration, and we find no error which entitles the prisoner to a new trial.

The objections urged upon our attention by counsel are that the Judge declined to charge as requested:

First. That there was no evidence of a deliberate and premeditated murder, and, therefore, a verdict of murder in the first degree should not be rendered.

Second. That to constitute murder in the first degree, there must exist, on the part of the slayer toward the deceased, expressed malice; and that in order to convict defendant of murder in the first degree in this case, the jury must be satisfied beyond a reasonable doubt that he slew deceased with particular or express malice, and that he did so with premeditation and deliberation.

Third. That in the charge, as given, the Court did not properly instruct the jury as to what constitutes deliberation. and premeditation, in that he did not tell them that if the purpose to kill was formed simultaneously with the act of killing, the homicide would not be murder in the first degree.

We are of opinion that none of these objections can be sustained.

There was evidence tending to show that the son of deceased owed the prisoner a small sum of money, and there was a dispute between them as to the amount; that a few days before the homicide, the prisoner was heard to say that the deceased, Frank, upheld his son, Onney, in not paying him the money, and that he was going to have the money or shoot the deceased. On the occasion of the homicide there is no substantial difference in the account given by the wit

nesses.

STATE . BANKS.

Three eye-witnesses to the occurrence testified, in substance, as follows:

Jesse Reeves: "Banks left church first. McMillan and I went on home together. We overtook Banks and Onney MeMillan and Robert McMillan. Then we all went on together. Banks said that Onney owed him $1.50, and Onney disputed the amount; and Onney put his hand in his pocket, and Banks said: 'Hold on! durn you, don't bring out anything, and pulled his pistol out. McMillan and the boy were going on. Banks had his pistol out, and told the boy not to dispute his word. He leaned up against the deceased and said: 'Do you see this? Banks then went on and overtook Onney. It was twenty steps to the forks of the road. Banks ran up and told Onney he was going to have his money or beat hell out of him, and struck at him, and deceased then threw his arm around Banks' neck, and Banks fired, and deceased went up against a fence, and Banks kept walking up, snapping, and changed the barrels with his right hand, and I saw him hit deceased with the pistol. Deceased fell. Banks, after the first two shots, and while deceased was going away, fired at him three or four times. Banks snapped three or four times right over the deceased after the firing, and then changed the butt of the pistol and hit deceased in the face. Deceased walked ten steps between the time of the first and second fire."

Nettie Parsons: "Banks ran around deceased and shot him in the back. When the last shot was fired deceased had his back turned to Banks, and Banks followed him up and fired at him as deceased was going from him. Deceased had his back to Banks all the time he kept shooting."

Robert McMillan: "After we left the church Banks said to Onney, I want to see you,' and Onney stopped. Banks had a Barlow knife, and shook it at Onney and said if Onney did not pay him he would whip him. The deceased came up