ADAMS, J., concurring, STACY, C. J., and BROGDEN, J., concurring in result, CLARKSON, J., dissenting.

Indictment for murder. Verdict: Guilty of murder in the first degree.

From judgment on the verdict, that defendant suffer death as provided by statute, defendant appealed to the Supreme Court.

CONNOR, J.

The lifeless body of Beulah Tedder was found by her father, Alex Tedder, between 6:30 and 7 o'clock p.m. on Thursday, 8 December, 1927, lying beside a path, thirty-five or forty yards from his home, in Wayne County, N.C. The path beside which the body was found runs from the home of Cora Reid to the home of the father of the deceased. She was lying flat on her back, with her head turned to one side, and with one leg drawn up under her body. Her dress was thrown back towards her shoulders. Her throat was cut; there were also cuts on her cheeks, her arms and her hands. The evidence tended to show that these cuts were made with a knife, at or near the place where the body was found, by some person who, at the time, was assaulting her with a knife and that she was attempting to escape from her assailant. The county physician who examined the body the next day after it was found by her father, about 10 o'clock a.m., testified that from his examination he was convinced that the deceased had not been ravished. She was a strong, well-developed girl, about fourteen years of age, weighing about 115 pounds. There was no evidence tending to show that the deceased had been ravished, or that the homicide had been committed in the perpetration of a rape upon the deceased.

The deceased was the oldest child of her father's family. She had left his home that evening about 6 o'clock with Cora Reid, a neighbor, whose home was at a distance of about 2,200 feet from her father's home. She went with Cora Reid to her home, at her father's request, to get some home-made syrup for the family. After she and Cora Reid arrived at the home of the latter, the deceased remained there for about five minutes. She then left, with the syrup, going in the direction of her father's home, along a path near which, at a distance of about 1,000 feet from the home of deceased's father, was situate the home of defendant, Larry Newsome. There was evidence tending to show that defendant was at his home, when deceased and Cora Reid passed the same, going to the home of the latter, walking together along the path, and that defendant saw them as they passed. He knew that deceased would later return to her father's home, by this path, alone. There was evidence tending to show further that defendant waylaid the deceased as she was returning from the home of Cora Reid to the home of her father, about 6:30 o'clock, and that he killed her by cutting her throat with a knife.

There was also evidence tending to show that defendant met the deceased, as she was returning from the home of Cora Reid to her father's home, near defendant's home, and that he then and there assaulted her, with intent to commit rape upon her. This assault, made about 125 to 140 yards from the place at which the body of the deceased was found, was not successful. The deceased broke away from defendant and ran toward her father's home. There was evidence tending to show that defendant pursued her with intent to commit rape upon her, and that he overtook her; that defendant killed her by cutting her throat with a knife, while attempting to perpetrate upon her the crime of rape.

There was evidence tending to show further that when defendant failed in his attempt to commit rape upon the deceased, at the time of his first assault upon her, because of her successful resistance, he abandoned his purpose to rape her, and that deceased escaped and ran from him; that as she was running toward the home of her father, she called to defendant, saying that she would tell her father of defendant's assault upon her, as soon as she arrived at his home; that defendant then pursued her a distance of 125 to 140 yards from the place where he first assaulted her, overtook her and again assaulted her with a knife with no intent to rape her, but with intent to prevent her from telling her father of the previous assault with intent to commit rape; that while making this latter assault upon deceased, defendant cut her throat with a knife, thus causing her death.

No evidence was offered by defendant; on cross-examination of witnesses for the State, defendant's counsel, assigned by the court to defend him in this action, sought to show that defendant's mental condition is such that he is not capable of committing crime. These witnesses testified that while in their opinion defendant is a man of low mentality, with the mind of a child of immature years, he had sufficient intelligence to know and did know right from wrong, and that he was capable of appreciating and did appreciate the moral quality of his acts. The sheriff of Wayne County, on his cross-examination as a witness for the State, testified "that he had been with the prisoner right much, while riding backwards and forwards, between different places; that in his opinion there are lots of people who have more sense than the defendant, but that defendant has plenty of sense to know right from wrong, and that defendant, in his opinion, has the intelligence of the average negro, without any education." Dr. W. C. Linville, psychiatrist for the State Hospital at Goldsboro, testified for the State that he had examined the defendant, since his arraignment upon the indictment in this action, in order to form an opinion as to his mental condition, and that in his opinion, formed as the result of such examination, defendant was at the time of the examination and also on the day of the homicide, sane. This witness on his cross-examination by counsel for defendant testified that defendant should be classed as a high-grade moron; that a high-grade moron is one whose mental faculties are undeveloped. On his redirect examination, the witness defined a moron as "a man without any education, a man with very poor training in life, and very poor ideas of law and order."

The only objection made by counsel for defendant to evidence offered by the State were directed to testimony of witnesses as to alleged confessions made to them by defendant, after his arrest, and while he was in the custody of the sheriff or his deputies. Two of these witnesses, J. R. Kornegay and Carl Smith, were deputy sheriffs of Wayne County. The other witness was Dr. W. C. Linville, the psychiatrist, who examined the defendant for the purpose of qualifying himself to testify as to the mental condition of defendant, at the time of the homicide. Each of these witnesses testified that the confession made to him, or in his presence, was voluntary on the part of defendant, and was made without promise or threat to defendant. The court overruled the objections, and defendant, having duly excepted upon his appeal to this Court, assigns the admission of testimony tending to show confessions by him as error.

With respect to the testimony of witnesses as to confessions of defendant, the court instructed the jury as follows: "Right here I want to say, and I feel it is my duty to say it: A confession of a prisoner who is charged with crime cannot be offered in evidence and received by the court and considered by the jury unless such confession is absolutely free and voluntary on the part of the person making it. If a person charged with crime is offered any inducement to confess, if any promises are made to him, or if he is threatened by any person, and under such threats, or by any coercion exercised upon him, he makes any admission or confession, the humanity of the law of this State will not permit that confession to be received in evidence. So in reference to the statements testified to by Mr. John Kornegay as to what the defendant told him after he left the penitentiary, and while he was on his way to Goldsboro: I charge you not to consider any statement made to him, because after giving to his evidence mature thought and consideration I have decided that the promise that he made to the defendant while in the penitentiary that he would protect him, was there to protect him, was such a promise as would make any confession inadmissible in a court of justice. So when you go to make up your verdict, I charge you not to consider anything that Mr. Kornegay said as to confession made to him, or anything Mr. Carl Smith said as to confessions made to Mr. Kornegay while he was on the way from Raleigh to Goldsboro. However, this does not apply to the testimony of Dr. Linville. This testimony on the part of Dr. Linville as to what the defendant said to him, I consider competent evidence and it is permissible for you to consider it when you go to make up your verdict."

If the testimony of the witnesses, Kornegay and Smith, deputy sheriffs of Wayne County, as to statements, in the nature of confessions, made by defendant to the witness Kornegay, in the presence of the witness Smith, was incompetent and inadmissible as evidence against the defendant, for that said statements were made by the defendant in reliance upon assurances of the deputy sheriffs that they would protect him while he was in their custody, and if it was, therefore, error to overrule defendant's objections to the admission of this testimony, when same was offered by the State, such error was rendered harmless by the withdrawal of the incompetent testimony from the consideration of the jury in the charge. There was sufficient evidence other than the testimony as to confessions from which the jury could find that defendant is the man who killed deceased, by cutting her throat with a knife, and that the homicide was committed, either by lying in wait, or in the attempt to perpetrate a felony — to wit, rape, or after deliberation and premeditation by the defendant. The testimony as to the alleged confessions was cumulative as evidence with respect to these matters and its withdrawal from the jury rendered the error in its admissions, if any, harmless.

The principle upon which defendant's assignments of error with respect to the testimony of the witnesses Kornegay and Smith as to confessions made by defendant, are not sustained, is stated by Adams, J., in Hyatt v. McCoy, 194 N.C. 760, as follows: "The admission of improper or incompetent evidence which is withdrawn from the jury and stricken out will not constitute reversible error, especially where the jury is particularly instructed not to consider it or to be influenced by it in making up the verdict." This principle has been applied by this Court not only in appeals in civil actions, as appears by the cases cited by Adams, J., in Hyatt v. McCoy, but also in appeals in criminal actions. S. v. Dickerson, 189 N.C. 327; S. v. Lane, 166 N.C. 333; S. v. Flemming, 130 N.C. 688; S. v. Ellsworth, 130 N.C. 690; S. v. Apple, 121 N.C. 584; S. v. Collins, 93 N.C. 564; S. v. May, 15 N.C. 328. In the last cited case, Ruffin, C. J., says: "If improper evidence be received, it may afterwards be pronounced incompetent, and the jury instructed not to receive it." In S. v. Lane, supra, Walker, J., after restating the principle and applying it to an assignment of error in that case, says: "We cannot assume that the jury disobeyed the court's instruction, and considered the evidence, but we must presume the contrary, unless prejudice appears or is shown by the appellant in some way. The burden is on him to prove it. Rush v. Steamboat Co., 67 N.C. 47; Thomas v. Alexander, 19 N.C. 385." In the instant case, there was evidence, other than the testimony of the witnesses Kornegay and Smith as to defendant's confessions, from which the jury could find that defendant is the man who killed deceased, and that he killed her as contended by the State, under circumstances that make the homicide, under the statute, murder in the first degree. The clear and full statement in the charge to the jury of the principles applicable to the admission of testimony tending to show confessions by the defendant, as evidence against him, and the vigorous language used by the learned judge in the instruction, withdrawing the testimony, and directing the jury not to consider it, cured the error, if any, in the admission of the testimony over the objections of defendant.

The fact that defendant was in the custody of the deputy sheriffs of Wayne County, who were taking him from the State's prison at Raleigh to Goldsboro, for trial, at the time he made the statements offered in evidence as confessions, does not render such statements incompetent and inadmissible as evidence against the defendants. This fact alone does not show that the confessions were involuntary. This is well settled by numerous decisions of this Court. S. v. Bowden, 175 N.C. 794; S. v. Lowry, 170 N.C. 730; S. v. Lance, 166 N.C. 411; S. v. Jones, 145 N.C. 466; S. v. Exum, 138 N.C. 599. In S. v. Gray, 192 N.C. 594, we said: "We are not aware of any decision which holds a confession, otherwise voluntary, inadmissible because of the number of officers present at the time it was made. Nor has the diligence of counsel discovered any." The assurance given to defendant by the officers before they left the State's prison, that they would protect him while he was in their custody, on the way to Goldsboro, cannot be held as an inducement to defendant to make statements to the officers with respect to the crime with which defendant was charged after they had left Raleigh, and while they were on the way to Goldsboro. This assurance was given to defendant, manifestly, because of apprehension expressed by him to the officers, that he would be attacked and subjected to violence after he had left the protection of the State's prison. The presiding judge withdrew from the jury the testimony of the witnesses Kornegay and Smith, as to defendant's statements to them, in the nature of confessions, evidently out of abundant caution, and because of his earnest desire that the defendant should not be prejudiced by testimony of confessions, as to the competency of which he had, after much reflection, some doubt. Upon the facts disclosed by the evidence, we do not think that there was error in overruling defendant's objections to the introduction of this testimony. We find no evidence showing that the statements made by the defendant to the officers, and offered by the State as confessions by him were otherwise than voluntary. But even if there was error in overruling the objections to this testimony when the same was offered, the error was cured by the withdrawal of the testimony in the charge to the jury.

The assignment of error based upon defendant's exception to the refusal of the court to sustain his objection to the testimony of Dr. Linville, as to statements made to him by defendant, offered in evidence as a confession by defendant, presents a more difficult question than that presented by the first and second assignments of error. It appears from the testimony of Dr. Linville that he is by profession a psychiatrist, and that he examined the defendant in a professional capacity. It does not appear, however, from his testimony, or from any other evidence before the court at the time defendant's objection was under consideration, at whose instance or at whose request, the examination of defendant was made by Dr. Linville. It does appear from a memorandum, filed in the record by the trial judge, and included in the case on appeal, as settled by him, with respect to an incident which occurred during the trial, having no connection, however, with this assignment of error, that counsel assigned by the court to defend the prisoner in this action visited the prisoner in jail, and that after a conference with him, advised the court that the only defense which they could possibly interpose in behalf of the prisoner was that of mental irresponsibility. Thereupon, at the request of counsel for defendant, the court communicated with Dr. Linville, the psychiatrist at the State Hospital for the Insane, at Goldsboro, and requested him to examine the prisoner, in order that he might form an opinion as to his mental capacity. The examination was made by Dr. Linville, in accordance with this request. Dr. Linville was thereafter called as a witness at the trial, and examined in behalf of the State. Defendant objected to testimony of this witness as to statements made to him by defendant, in the nature of confessions, while defendant was under examination by the witness, as a psychiatrist. The objection was overruled, and defendant excepted.

Dr. Linville testified that he examined the defendant on Saturday afternoon, about 1:30 o'clock; that he made a complete physical examination, and found no trouble with his heart, his lungs or his abdomen, but found a few minor defects such as might be found in an average person. He further testified as follows: "In my mental examination, I asked him about his past life, his occupation, and various incidents in his life. He told me that he had never had any disease, except the flu. He suffered from the flu for a short time. He seemed to know every thing in his past life, even the most minute details. He said he has staggering spells. I asked him if he lost consciousness at such times, and he said, `Not as I know of.' I asked him about his father, and he said that his father also suffered from staggering spells. He said that they never fell or hurt themselves, but had kind of giddy feelings. I asked him about this occurrence which had just happened. He told me in detail of this occurrence. The examination was conducted in the presence of a deputy sheriff."

The witness was then asked if the defendant made a statement to him about the murder with which he was charged; he replied that he did. The witness then testified that he made no offer or inducement of any kind to defendant, nor did he threaten or coerce the defendant in any way; that defendant's statements to the witness were voluntary, and made in reply to questions asked him by the witness as to what caused him to commit the crime.

The witness then testified, subject to defendant's exception, as follows: "I asked him what caused him to do this, and he said `I don't know.' I asked him if he cut the girl immediately after he came up with her. He said he did not; that he seized her around the waist, and she fought him off and ran from him. He said that he cut her after he caught up with her; that he cut her because she said she was going to tell her father."

There was no error in holding that the statements made by defendant to Dr. Linville, as testified by him, were voluntary. No promise was made to defendant to induce him to make the statements, nor was any threat used to extort the statements from the defendant. S. v. Bridges, 178 N.C. 733; S. v. Bohannon, 142 N.C. 695. The testimony of Dr. Linville was therefore competent, and properly admitted as evidence of a confession by defendant, unless the statements were privileged under the provisions of C. S., 1798. If the statements were privileged under this statute, then in the absence of a finding by the presiding judge, duly entered upon the record, that the testimony was necessary to a proper administration of justice, it was incompetent, and upon defendant's objection should have been excluded. Ins. Co. v. Boddie, 194 N.C. 199. Upon the facts, however, appearing upon the record in this case, we are of opinion that C. S., 1798, is not applicable. It does not appear that the relation of physician and patient, within the meaning of the statute, existed between Dr. Linville and the defendant, at the time the statements were made, nor that the information thereby obtained by Dr. Linville was necessary to enable him to prescribe for the defendant as his patient. It does not appear that defendant, at the time of the examination, was informed or knew that Dr. Linville had been requested to make the examination by his counsel, and that he relied upon the relationship of physician and patient, in making the statements. It is only when the relationship of physician or surgeon and patient has been established between the parties, and statements are made by the latter to the former, in reliance upon this relationship, for the purpose of affording information to the physician to enable him to prescribe treatment for the patient or to enable the surgeon to do some act for him as a surgeon, that the statute renders the statements inadmissible as evidence against the patient. Even then the judge may compel a disclosure by the physician or surgeon, if in his opinion the same is necessary to a proper administration of justice. See Ins. Co. v. Boddie, supra. It has been held in other jurisdictions that no professional relation precluding a disclosure of information acquired arises where a physician employed for that purpose alone makes an examination of a person charged with crime in order to pass upon his sanity, or to search for physical symptoms bearing upon his guilt or innocence. 40 Cyc., 2382 and cases cited. In the absence of evidence showing that a defendant in a criminal action, under examination by a physician for the purpose of enabling the physician to form an opinion as to his mental capacity, made statements in the nature of confessions, in reliance upon the relationship of physician and patient, it would seem that such statements are not privileged, under our statute. C. S., 1798. Certainly they are not privileged, unless the relationship exists at the time the statements are made. It cannot be held upon the facts appearing on this record, that the relationship of physician and patient existed between Dr. Linville and the defendant at the time the alleged confession was made by defendant. Defendant's third assignment of error cannot be sustained.

The trial judge, in his charge to the jury, after stating in a plain and correct manner the evidence given in the case, and declaring and explaining the law arising thereon, as required by C. S., 564, gave the following instructions to the jury:

"I charge you that if you are satisfied from this evidence, and find beyond a reasonable doubt, that is, to a moral certainty, that the defendant killed Beulah Tedder, while lying in wait, or that he killed her while attempting to commit rape upon her person, or if not in either of these instances, that he killed her after premeditation and deliberation, as I have defined those terms to you, it would be your duty to return a verdict of guilty of murder in the first degree; but if you are not so satisfied, it would be your duty to return a verdict of not guilty."

"In this case I do not see and cannot arrive at any conclusion that would lead me to leave with you the question of his guilt upon charge of second degree murder or manslaughter; I therefore charge you that you can return but one of two verdicts in this case — either murder in the first degree, or not guilty."

The defendant excepted to the last instruction and assigns same as error. He contends that under the law of this State, as enacted by the General Assembly and as declared by this Court, and upon the evidence submitted to the jury in this case, it was error to instruct the jury that they could return only one of two verdicts — guilty of murder in the first degree, or not guilty; that the jury should have been instructed that although they should find from the evidence, beyond a reasonable doubt, that defendant killed the deceased with a deadly weapon, if they did not find further from the evidence, beyond a reasonable doubt, that he killed her while lying in wait, or in the attempt to perpetrate upon her person the crime of rape, they should return a verdict of guilty of murder in the second degree, unless they should find further from the evidence, beyond a reasonable doubt, that defendant killed the deceased after premeditation and deliberation, as those terms had been defined in the charge; that only upon such finding could the jury return a verdict of guilty of murder in the first degree, if they had failed to find that the murder was perpetrated by lying in wait, or in the attempt to commit the crime of rape. These contentions present a serious question which it is the duty of this Court to decide, in accordance with the law as enacted by the General Assembly of the State, and as heretofore declared in authoritative decisions of this Court. The rights not only of the defendant in the instant case, but of every person who may hereafter be called upon to answer a charge of murder in the courts of this State are involved in our decision.

In his charge, the court had correctly instructed the jury that they were not bound by the testimony of any particular witness or class of witnesses. He had said to the jury: "You are not bound to believe any witness or class of witnesses; but it is for you to say, after giving to the testimony of any witness that degree of scrutiny to which you think it is entitled, what weight you will give to such testimony when you retire to your room." It is for the jury to determine whether they believe or disbelieve all or any part of the testimony of a witness; they are the sole judges not only of the weight of the evidence, but also of the credibility of the testimony. "No judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury." C. S., 564. This statute was enacted in 1796; it has been in full force and vigor since its enactment. The wisdom of the policy upon which it was enacted and in accordance with which it has since been maintained as the law in this State is not for the courts to determine.

Since the enactment in 1893 of the statute dividing murder into the first and second degree, and defining each degree of the crime, it has been uniformly held by this Court that a homicide committed with a deadly weapon is presumed to be murder in the second degree and that in the absence of evidence tending to show facts which under the statute make the homicide murder in the first degree, or, on the other hand, facts which reduce the homicide to manslaughter, the jury should be instructed that if they find from the evidence, beyond a reasonable doubt, that the killing was done intentionally and unlawfully with a deadly weapon, they should return a verdict of guilty of murder in the second degree. It is provided by statute that "nothing in the statute law dividing murder into degrees shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree." C. S., 4642.

The decisions of this Court, subsequent to the enactment of the act of 1893, and prior to the decision in S. v. Spivey, 151 N.C. 677, at Fall Term, 1909, in appeals presenting the question as to whether upon a trial for murder, under the usual form of indictment, it is ever permissible for the trial judge to instruct the jury that upon all the evidence, if they believe the same and find therefrom the facts to be as all the evidence tends to show, they could return only one of two verdicts — guilty of murder in the first degree, or not guilty — left the answer to this question in some doubt. In S. v. Gadberry, 117 N.C. 812, the question was decided in the negative, although there were strong dissenting opinions by Clark, J., and Montgomery, J. In the opinion for the Court by Furches, J., concurred in by Avery, J., it was held that since the act of 1893, where on a trial of one charged with murder, although the defendant introduced no evidence, and all the evidence for the State tended to show only murder in the first degree, it was error to instruct the jury that if they believed the evidence they should find the defendant guilty of murder in the first degree. In S. v. Covington, 117 N.C. 834, in the opinion by Avery, J., for the Court, Furches, J., having been of counsel in the court below, not sitting, it is said: "His Honor excluded from the jury the question of murder in the second degree and instructed them that in no view of the case as presented by the evidence was the prisoner guilty of murder in the second degree or manslaughter. To this the prisoner excepted. The charge is correct if there was no evidence of murder in the second degree or of manslaughter. The evidence relied upon by the State is the confession of the prisoner to the witness Josey and circumstances detailed by other witnesses tending to confirm it. Upon the truth or falsity of the confession the guilt of the prisoner entirely depends. If the confession of the homicide is a confession of murder in the first degree, and of neither manslaughter nor murder in the second degree, the charge is correct, for there is no evidence of either of these latter offenses. S. v. McCormac, 116 N.C. 1033."

However, in S. v. Spivey, 151 N.C. 677, Manning, J., writing for a unanimous Court, says: "After a careful review of the decisions of this Court and a critical examination of the statute (Rev. 3631, now C. S., 4200, and Rev., 3271, now C. S., 4642), we deduce the following doctrine: 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 the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, and where there is no evidence and where no inference can be fairly 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 doubt, or of `not guilty.' If, however, there is any evidence, or if any inference can be fairly deduced therefrom, tending to show one of the lower grades of murder, it is then the duty of the trial judge, under appropriate instructions, to submit that view to the jury."

The doctrine thus clearly stated is now and has since been the law in this State, with respect to this matter. S. v. Gadberry is expressly overruled in S. v. Spivey. In the former case all the evidence tended to show that defendant shot and killed deceased in an attempt to commit a felony, to wit, abduction. It is well settled, therefore, as the law of this State, that where all the evidence tends to show that defendant is guilty of murder, and that the murder was perpetrated by one of the means specified in the statute, or was committed in the perpetration of or attempt to perpetrate a felony, as defined in the statute, it is not error for the judge to instruct the jury that upon all the evidence, if they believe the same and find therefrom the facts to be as all the evidence tends to show, beyond a reasonable doubt, they should return a verdict of "guilty of murder in the first degree." In such case if defendant committed the murder, he is guilty of murder in the first degree, and the jury should so find by their verdict. In these instances the State is not required to prove deliberation and premeditation, because the means by which the murder was perpetrated, or the circumstances under which it was committed, show necessarily both deliberation and premeditation. When, however, the State relies upon evidence tending to show not only that the murder was perpetrated by one of the means specified in the statute, or that it was committed in the perpetration of or attempt to perpetrate a felony as defined in the statute, but also upon evidence tending to show deliberation and premeditation, the jury should be instructed that if they fail to find from the evidence, beyond a reasonable doubt, that the murder was perpetrated by one of the means specified in the statute, or that it was committed in the perpetration of or attempt to perpetrate a felony, and further fail to find from the evidence, beyond a reasonable doubt, that it was committed after deliberation and premeditation, they should return a verdict of guilty of murder in the second degree, provided, of course, they shall find from the evidence, beyond a reasonable doubt that the defendant committed the murder. Deliberation and premeditation, if relied upon by the State, as constituting the homicide murder in the first degree, under the statute, must always be proved by the evidence, beyond a reasonable doubt. In such case, under the statute as construed by this Court, it is for the jury and not the judge to find the fact of deliberation and premeditation, from the evidence, and beyond a reasonable doubt. Premeditation and deliberation are always matters of fact to be determined by the jury, and not matters of law to be determined by the judge.

Applying these principles, we must sustain defendant's assignment of error based upon his exception to the instruction of the court to the jury. For the error of law, in said instruction, defendant is entitled to a new trial, and it is our duty, in the exercise of our appellate jurisdiction, conferred upon this Court by the Constitution of the State, to so decide.

It cannot be held as a matter of law that all the evidence in this case, and every inference fairly and reasonably to be drawn therefrom, required the jury to return a verdict of "Guilty of murder in the first degree," or of "Not guilty." A verdict of "Guilty of murder in the second degree" could have been returned by the jury under the law and the evidence in this case. The fact that the evidence fully justified the verdict as returned by the jury, does not affect the decision of the question which we are called upon to decide, upon this appeal. This Court has no jurisdiction to decide whether or not the defendant is guilty of murder as charged in the indictment, or, if guilty, whether he is guilty of murder in the first or second degree. We must decide only whether his assignments of error, duly presented upon his appeal, are sustained by the law of this State, as enacted by the General Assembly and declared by this Court. The decision of the trial court that, as a matter of law, upon all the evidence, defendant, if guilty, as charged in the indictment, is guilty of murder in the first degree, was error for which defendant is entitled to a new trial.

The court in its charge to the jury, had instructed them fully and correctly as to premeditation and deliberation, relied upon by the State, in part, to support its contention that defendant is guilty of murder in the first degree. The trial judge was of opinion that if the jury should fail to find beyond a reasonable doubt that the murder was committed by lying in wait, or in the attempt to perpetrate a felony, there was evidence tending to support the contention of the State that defendant killed deceased, with malice, after premeditation and deliberation; in this he was correct. But under the statute, whether or not the evidence established this fact, beyond a reasonable doubt, was for the jury to determine, and not for the judge. The distinction is not fanciful; it is vital. Upon this distinction rests the integrity of trial by jury, guaranteed by constitutional provision, and approved as the ultimate protection of the individual, in his rights of person and of property, by the experience of centuries.

Defendant further contends upon his appeal to this Court that he is entitled to a new trial, because of facts set out in a memorandum filed by the presiding judge, in the case on appeal, as settled by him, with respect to an incident which occurred during the progress of the trial. Defendant, while sitting in the bar, beside his counsel, was assaulted by the father and uncle of the deceased, with the evident purpose of taking him from the custody of the court. This assault was made during the examination of a witness for the State. Approval of the assault and of the purpose with which it was made, was manifested by persons in the court room. The purpose of the assault was promptly frustrated by the sheriff, who rescued defendant from his assailants. After the confusion in the court room, occasioned by the assault had subsided, the trial proceeded in an orderly manner, resulting in the verdict, and judgment. No motion for a mistrial was made by defendant, nor does the record contain an exception to any ruling or decision of the court with respect thereto. There is therefore no assignment of error, which we can consider in the exercise of our appellate jurisdiction. Defendant contends, however, that upon the facts found by the judge, he should, of his own motion, have ordered a mistrial, and that it was error of law, for which he is entitled to a new trial, for the court to proceed with the trial, after this incident. We cannot so hold. We cannot hold that as a matter of law the presiding judge should have, without a request from defendant or his counsel, ordered a mistrial, because of this incident. It does not appear that counsel for defendant were intimidated by the assault upon defendant, or that they were deterred by the conduct of persons in the courtroom from making such motions as they thought the circumstances required for the protection of defendant's rights. The judge finds as a fact, as stated in the memorandum that, "during the foregoing demonstration the jury sat in perfect order and did not appear to be at all disturbed." In his charge to the jury, the court instructed them in strong and vigorous language that they should not be influenced by the assault or by the accompanying demonstration of approval in the courtroom, in arriving at their verdict. There is nothing in the record which shows that the jury failed to respond, as intelligent men, sworn as jurors, to the admonition of the judge. We do not think that upon principle or upon the authorities defendant is entitled to a new trial upon this contention.

For the error in the charge, as appears in this opinion, defendant is entitled to a new trial. It is so ordered.

New trial.