guns" about the time it was supposed the deceased was killed.

This is a synopsis of the strongest part of the evidence against the prisoners, and it must be admitted that it tends strongly to prove that the prisoner Wade was the author of the killing, or, as the Attorney-General put it, "it is consistent with the verdict of murder in the first degree." But this is not the question before us. The question presented for our consideration is the correctness of his Honor's charge, which is stated as follows: "That after the jury had been out from Saturday evening until the following Wednesday, they returned into court and requested his Honor to restate to them the law with regard to the different degrees of murder. This the court did, by reading the statute to the jury, and charged them that if the *Page 734 killing was by lying in wait and shooting deceased from behind a tree, and the jury, were satisfied of this, beyond a reasonable doubt, and that the killing was willful, deliberate and premeditated, it would be murder in the first degree." To this part of the charge there can be no objection. It is in harmony with every opinion delivered by this Court upon the act of 1893, dividing murder into two degrees. But the charge did not stop with what we have quoted. The judge added to that the following: "That there was no evidence of murder in the second degree in the case now on trial." In this there was error. It was the same, in substance and effect, as if he had told the jury. if they found the prisoners guilty of anything, they must find them guilty of murder in the first degree. To sustain this charge would be to nullify the statute of 1893. This we cannot do, nor permit (1157) to be done by the judges of the Superior Courts. Before the act of 1893, the law of homicide was the common law, as laid down by Sir Michael Foster, that where the killing was admitted or proved to have been done with a deadly weapon, malice was presumed, and it was murder, nothing more appearing. And it devolved upon the prisoner to show circumstances in extenuation, mitigation or excuse. This rule, under the act of 1893, applies to murder in the second degree, and not to murder in the first degree. If it did, the act of 1893 would be a nullity. The first section of chapter 85, Laws 1893, except from the second section, which provides for murder in the second degree, and which retains the common-law presumption, a number of murders which are therein enumerated, among them, where it is perpetrated "by lying in wait, * * * or by any kind of willful, deliberate and premeditated killing, * * * it shall be deemed to be murder in the first degree and shall be punished with death." And the third section provides: "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."

Then, to constitute the prisoners murderers in the first degree, the killing must have been committed "by lying in wait or with deliberation and premeditation." This is presumed by law, or it must be proved. If it is presumed, as we have said, then the act of 1893 is a nullity, and every killing that would have been murder before the act is murder in the first degree under the act. If it is to be proved, by whom is it to be proved? Does the State have to make out its case, or does it devolve on the prisoner? Is it required that the prisoner should prove a negative, or prove that he is not guilty, before the State proves that he is ? This cannot be so, and were it not (1158) for the great respect we have for those who differ with us, we would say, to our minds, it seems absurd. Then, if these *Page 735 things are not presumed, but are to be found as facts, who is to find them, the judge or the jury? It would be new law in North Carolina for a judge to find the facts in a trial for murder. But the act of 1893 says in express terms that the jury before whom the case is tried shall determine the degree of murder. And we do not understand this to mean an unbridled arbitrating or mob finding, any more than it was before the statute. Even before the act of 1893 we all know that it was within the power of the jury to acquit and turn loose a prisoner, no matter how guilty he might be, and the court was powerless. In fact, it is alleged that they often did this. But it is expected that they will find the facts and apply them to the law given by the court, determine whether the prisoner is guilty or not, and, if guilty, in what degree. We see no reason why they should act differently now to what they did before the statute, and we do not believe they are any more disposed to take the law in their own hands in deciding cases under the act of 1893 than they were before.

It has been said that this Court has gone too far in its grant of power to the jury. But we do not think so. We have not gone as far as JudgeIredell, of the Supreme Court of the United States, went in charge of his in Georgia, quoted and approved by Justice Gray in his opinion in the case of Sparf v. U.S., 156 U.S. 51, and appendix, p. 714.

This question has been fully discussed heretofore, and the act of 1893 construed by this Court, especially in the case of S. v. Fuller,114 N.C. 885, and S. v. Gadberry, 117 N.C. 811, and we can see no reason to change or modify the construction given the statute in those cases.

There are a number of other exceptions made and argued by the prisoner's counsel, but we have not considered them, as (1159) they may not arise on another trial and as we thought it best to put our judgment upon the point we have, with a view of emphasizing, if we could, the opinions of this Court heretofore given upon the construction of this statute. There is error, and a new trial is ordered.

New trial.

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