The opinion
Stacy, C. J.,
concurring in result: There are just three observations which I wish to make in regard to this case:
First, with respect to the alleged confessions of the defendant: Confessions are of two kinds, voluntary and involuntary. Voluntary confessions are admissible in evidence against a defendant; involuntary confessions are not. A confession is voluntary in law when — and only when — -it was in fact voluntarily made. Ziang Sung Wan v. United States, 266 U. S., 1 , 69 L. Ed., 131 . The voluntariness of a confession is a preliminary question to be determined by the judge in passing upon its competency as evidence. S. v. Andrews, 61 N. C., 205 . And in deciding the question of its admissibility in evidence, the judge may hear the testimony of witnesses pro and con. S. v. Whitener, 191 N. C., 659 , 132 S. E., 603 . If an alleged confession is excluded, its competency cannot arise on appeal; but, if admitted, it may.
Second, as to the charge: When on the trial of a criminal prosecution it is permissible under' the bill, as here, to convict the defendant of “a less degree of the same crime” (C. S., 4640), and there is evidence tending to support a milder verdict, the case presents a situation where the defendant is entitled to have the different views presented to the jury, under a proper charge, and an error in this respect is not cured by a verdict convicting the defendant of the highest offense charged in the bill of indictment, for in such event it cannot be known whether the jury would have convicted of a less degree of the same crime if the different views, arising on the evidence, had been correctly presented to them by the trial court. S. v. Holt, 192 N. C., 490 , 135 S. E., 324 ; S. v. Kline, 190 N. C., 177 , 129 S. E., 417 ; S. v. Lutterloh, 188 N. C., 412 , 124 S. E., 752 ; S. v. Allen, 186 N. C., 302 , 119 S. E., 504 ; S. v. Williams, 185 N. C., 685 , 116 S. E., 736 ; S. v. Merrick, 171 N. C., 788 , 88 S. E., 501 ; S. v. Kennedy, 169 N. C., 288 , 84 S. E., 515 ; S. v. Kendall, 143 N. C., 659 , 57 S. E., 340 ; S. v. White, 138 N. C., 704 , 51 S. E., *567 44 ; S. v. Foster, 130 N. C., 666 , 41 S. E., 284 ; S. v. Jones, 79 N. C., 630 .
Yiewing tbe record in the light of these decisions and the principle they illustrate, I am convinced that there was error to the prejudice of the defendant in withdrawing from the jury’s consideration the question of murder in the second degree.
When on a trial for homicide, a killing with a deadly weapon is admitted or established by the evidence, the law raises two — and only two — -presumptions against the slayer: first, that the killing was unlawful ; and, second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. S. v. Walker, 193 N. C., 489 , 137 S. E., 429 ; S. v. Benson, 183 N. C., 795 , 111 S. E., 869 ; S. v. Fowler, 151 N. C., 731 , 66 S. E., 567 . The additional elements of premeditation and deliberation, necessary to' constitute murder in the first degree, are not presumed from a killing with a deadly weapon. They must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree can be rendered against the prisoner. S. v. Thomas, 118 N. C., 1113 , 24 S. E., 431 . It is provided by C. S., 4200, that a murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree, punishable by death, and all other kinds’ of murder shall be deemed murder in the second degree, punishable by imprisonment in the State’s prison. S. v. Banks, 143 N. C., 652 , 57 S. E., 174 .
Third, in regard to matters transpiring in the courtroom: Without deciding, as it is unnecessary to do so on the present record, whether the trial court could or should have ordered a mistrial ex mero motu (S. v. Epps, 76 N. C., 55 ), upon the facts stated in the memorandum attached to and made a part of the case on appeal, I am of the opinion that this Court, in the exercise of its appellate jurisdiction and general supervisory power over proceedings in the lower courts, has ample authority to deal with the situation, disclosed by the memorandum filed herein, and to order a new trial, if, in its judgment, the ends of justice require it. S. v. Wilcox, 131 N. C., 707 , 42 S. E., 536 ; S. v. Tilghman, 33 N. C., 513 ; Moore v. Dempsey, 261 U. S., 86 ; Frank v. Mangum, 237 U. S., 309 ; Sheppard v. State, 141 S. E. (Ga.), 196. Indeed, in capital cases, where human life is involved, it is our rule, in favorem vita, to examine the whole ease to see that no error appears on the face of the record. S. v. Clyburn, post, 618; S. v. Thomas, ante, 458; S. v. Taylor, 194 N. C., 738 ; S. v. Ross, 193 N. C., 25 , 136 S. E., 193 ; S. v. Ward, 180 N. C., 693 , 104 S. E., 531 .
*568 The prisoner is now asking that a new trial be awarded on account of the matters and things set out in the memorandum aforementioned and, of course, he could not hereafter plead former jeopardy, should his request be granted. S. v. Rhodes, 112 N. C., 857 , 17 S. E., 164 . I do not think the question is exclusively one of coram non judice or loss of jurisdiction on the part of the trial court — such might be the proper inquiry on application for writ of habeas corpus — but on appeal to this Court, having, as it does, appellate jurisdiction and “general supervision and control over the proceedings of the inferior courts” (Const., Art. IV, sec. 8), the question is one of due process of law. It is fundamental with us and expressly vouchsafed in the bill of rights that no man shall be “deprived of his life, liberty or property, but by the law of the land.” Const., Art. I, sec. 17. The death penalty can be inflicted only as the law in its due administration commands. The concurring opinion of Associate Justice Brogden, filed herein, fully covers the law on this subject, as I understand it, and in this regard I entertain views similar to those expressed by him.