#### STATE v. BRICEY HAMMONDS.

(Filed 16 June, 1939.)

1. Criminal Law § 52b—

Upon a motion to nonsuit, only tbe evidence favorable to tbe State should be considered.

2. Same—

Upon a motion to nonsuit, tbe evidence should be considered in the light most favorable to the State and it is entitled to every reasonable intendment thereon and every reasonable inference therefrom. C. S., 4643.

3. Criminal Law § 52a—

The competency, admissibility, and sufficiency of the evidence is for the court; its weight and credibility is for the jury.

4. Homicide § 4c—

Premeditation and deliberation imply' thought prior to the execution of the fixed design, but the length of time elapsing between the formation of the fixed intent and the execution is immaterial.

5. Homicide §§ 4c, 21—

The surrounding circumstances and lack of provocation or sudden passion may be properly considered by the jury upon the question of premeditation and deliberation.

6. Homicide § 25 — Evidence held sufficient to be submitted to the jury on the question of defendant’s guilt of murder in the first degree.

The evidence tended to show that a prison guard, the defendant and the defendant’s father were riding together in an automobile, that the car had a flat tire and that while the guard was crouching on the ground with his coat off in attempting to place the mended tire on the car, defendant, who was standing back of him, slyly took the guard’s pistol from his holster and shot the guard in the back of the head, inflicting the fatal wound without warning, provocation or prior altercation. *Held:*The evidence was sufficient to be submitted to the jury on the question of defendant’s guilt of murder in the first degree, it being for the jury to determine from the actions of defendant and the manner of the killing whether the crime was committed with premeditation and deliberation.

7. Same—

It is not necessary for the State to prove motive in order to make out a case of murder in the first degree.

8. Homicide §§ 4c, 27c — Instruction upon defendant’s defense of intoxication precluding premeditation and deliberation held without error.

The State’s evidence tended to show an intentional killing of deceased with premeditation and deliberation. Defendant contended that he was so intoxicated at the time that he did not know what he was doing and was incapable of premeditation or deliberation, and that therefore he could not be convicted of the capital offense. *Held:*The court’s instruc*68tion to the jury to the effect that defendant could not be convicted of the capital crime if at the time of committing the act he was incapable of premeditation or deliberation, but that if defendant formed a fixed intent to kill prior to getting drunk and executed such intent while intoxicated, the killing would constitute murder in the first degree, is without error.

9. Homicide § 16—

A defendant asserting the defense of drunkenness to the charge of murder in the first degree has the burden of proving the defense to the satisfaction of the jury.

10. Criminal Haw § 41i—

An instruction that if the jury should believe from the facts and circumstances that interested witnesses had told the truth, their testimony should be given the same credit as that of disinterested witnesses is without error.

Appeal by defendant from *Burney, J.,*and a jury, at January-February Term, 1939, of RobesoN.

No error.

Tbe defendant was tried on a bill of indictment for tbe murder of Lacy Brumbies, convicted of murder in tbe first degree and judgment of death by asphyxiation was pronounced by tbe court below.

Tbe evidence was to tbe effect that Lacy Brumbies was killed by defendant. Brumbies bad a position with tbe State as a guard for a chain-gang in Robeson County. He bad been sick with a cold and cough and bad been at home on that account for several days. On Sunday morning, 6 February, 1939, about 8:30 o’clock, be left bis home in a little ’29 Ford roadster. He bad an officer’s badge and pistol in a bolster in bis belt, which be carried as an officer. He was married three years before and was 35 years old. He went to tbe State camp, about three miles from Lumberton. Defendant was an Indian and bad served a *term for*manufacturing liquor and was released that Sunday morning. He was a cripple, one leg and one band partly off. Brumbies arrived at tbe camp about 8 :45; be changed bis coat and left in bis Ford roadster in tbe direction of Pembroke. He went to tbe borne of James Hammonds, father of defendant, and told him be bad promised to bring Br'icey Hammonds home but be bad left the camp. Brumbies and tbe father of Brieey Hammonds went to bunt for defendant, but did not find him and returned to tbe father’s home and found defendant there. He bad walked home. Brumbies told defendant be bad gone to tbe camp to take him home but bad missed him. They stayed there some half hour and tbe three went to Pembroke in tbe roadster. The father got out of tbe car at a garage and was to be picked up at Son Lowry’s filling station. Brumbies and defendant went off and stayed about an hour and picked up tbe father, who testified for defendant, in part:

“When they came back Brieey looked to me about half foolish, when be drove up be bad bis bead banging down that way, and my first cousin *69says, be told me, ‘Jim,’ be said to me, 'Bricey is drunk, you better get in tbe car with bim and go on, tbe law will get him.’ I got in tbe car and we come on. "Wben I got in on tbe side tbat put Bricey in tbe middle, and be bad bis bead tbrowed up against my left shoulder. I took bim to be drunk. Mr. Brumbies bad drunk some, I could smell it on bim wben me and bim were taking tbe tire off tbe wbeel. . . ' Tbey started to tbe father’s borne and tbe tire to tbe roadster leaked down. Brumbies got an inner-tube out of tbe car and was putting it in tbe tire. Tbe following witnesses for tbe State testified, in part:

Harvard Obavis: “The automobile was out on tbe edge of tbe road, parked to tl^e right-band side of tbe road, kinder outside; there was room enough for other cars to pass; this car was beaded south. . . . I saw these three men. When I first observed them Mr. Hammonds and Bricey were not doing anything but this other fellow was working on a tire, be was taking it off on account of its going down. I didn’t know bim at tbat time. Wben I walked up I spoke to Bricey and me and bim spoke a few words, I asked bim wben be come borne, be told me tbat morning, and said be was going to stay; said be bad just come from tbe prison camp, be bad not been borne in four months and be was going to stay wben be got there, said be come that ■ morning. Nobody else in- the crowd said anything to me right then. I stayed there. Something, was said about me helping fix tbe tire, Bricey was tbe first one asked me, he said 'You better help fix tbe tire,’ I told bim I reckon I better get on, it was looking cloudy, I was going to get kindling. This guard, Bricey and bis father were there then; I mean tbe deceased wben I say tbe guard. At tbe time this conversation took place me and Bricey were in tbe edge of tbe road and tbe guard was over in front of tbe wbeel working on tbe wbeel; me and Bricey were right in front of tbe car; James Hammonds was around on tbe other side kinder back of tbe car like, across tbe car to where we were standing, be was kinder back behind it like. I stood there about a minute I suppose and tried to decide whether to help them with tbe tire or not; Bricey acted like be bad bad a drink and I didn’t know what shape this other man was in; be bad bis coat on at tbe time and I didn’t see no badge or gun and I didn’t know who be was. He must have got hot taking tbe tire off and be taken bis coat off, walked around in front of tbe car and threw it in tbe seat, and wben be threw it in tbe seat I seen bis badge and pistol. His badge was on bis shirt or vest under bis coat, right along down there (indicating the location on bis body), and bis pistol was in bis bolster on bis right side hip. So wben I seen bis pistol and badge I decided it would be all right to help bim with tbe tire. I said, 'All right, I think I will help with tbe tire since tbe cloud’s coming up,’ looked pretty gloomy, like be might get wet. I started around to try *70to belp bim as mucb as I could. He taken tbe old inner tube out and pitched it in tbe back of tbe car and be bad another inner tube and put it around in the tire; be was squatted down; be put tbe tire on tbe car and wben it got around tight James Hammonds was bolding the tire like this and this guard bad inserted a screw driver on tbe right-band side down here over on this side and was trying to insert tbe other tire tool in there; I was in tbe center and if be got it in there I was going to push down. We all bad bold of tbe tire, I was on my knees and be was squatted down over here on tbe right, I was immediately to bis left, and James was standing kinder to tbe running board bolding all be could. James was to my left and I was in tbe middle. Me and James were on our knees and this man be squatted down, kinder short man like. At that time Bricey was standing kinder behind us, behind tbe guard. While we were kneeling down there and inserted tbe screw driver to get this other tool down here for me to push it down, I beard a pop and felt tbe beat side of my bead and it kinder deafened me and I jumped up and looked around, Bricey bad a pistol in bis band, I seen some smoke around close up and be bad a pistol in bis band, and bis father be looked at tbe man first and wben be hollered, be said 'Bricey you have shot that man,’ and I happened to look over there, and there was tbe man, be bad fell on bis face kinder against tbe wheel, bottom of tbe wheel, tbe inside rim, be fell with bis face kinder down there and tbe blood was gushing out of bis mouth and nose, and wben I seen that, kinder dazed me for a few minutes and I stood there and looked at Bricey and be still bad tbe pistol in bis band like this, and bis father was coming around me and around bim and be come around me and bim and went to tbe road and Bricey hollered to bim and said, 'Wait, Pa,’ and be turned bis back to me, and wben be did I grabbed bim around tbe waist and arms from behind. I grabbed bim and held bim for bis father to come, back and take tbe pistol away from bim, so bis father came back and wrung tbe pistol out of bis band and wben be wrung tbe pistol out of bis band I turned bim aloose. Wben bis father got tbe pistol, be said, 'Good Lord, what did you mean by shooting that man ?’ be told bim be hadn’t done nothing, to keep bis mouth shut; that was what Bricey said to bim. Wben I turned Bricey loose I looked back to see if be bad fell over, be didn’t have any pistol, it wasn’t in bis bolster, tbe pistol that was in bis bolster was gone. Tbe pistol was in bis bolster wben be squatted down to fix tbe tire. Wben James got tbe pistol, James told tbe boy to go on borne and stay until be got there.”

Brumbies was taken to Baker Sanatorium in Lumberton. Tbe chief surgeon, Dr. H. M. Baker, removed tbe bullet: “I have an opinion from my examination, satisfactory to myself as to what caused tbe death of *71Lacy Brumbies; be died as a result of tbe bullet entering tbe brain. Brumbies died in my hospital about seven o’clock Sunday night.”

Tbe tire was fixed near Inman Bridge. Ed Martin: “Brumbies was down on bis knees and bands and bis bead was against tbe wheel of tbe car when we got there; it was tbe right front wheel. When we got there Warrix and Mr. Herbert Lowry and Harvard Chavis taken him up and I went around and cranked tbe car up and brought him to Baker Sanatorium. I observed that be was bloody, back of bis bead, tbe brains was running out and back of bis bead tbe clots of blood in tbe forehead. I brought him to Baker Sanatorium. . . . When we got back there Herbert Lowry bad Bricey under arrest. I talked with tbe defendant, Bricey Hammonds, and be told me be bad not been along that road that day-, tbe road tbe car was on where we got Brumbies at. Brumbies was living when we found him; be was living when I left Baker Sanatorium. It was after twelve o’clock when Bricey told me be hadn’t been along that road that day; just after we got back from bringing tbe man to tbe hospital be said, in tbe presence of Sergeant and myself, be hadn’t been along that road that day. At tbe time we got Brumbies from off tbe ground there at tbe car be bad bis coat off; be bad a bolster for a pistol; there was nothing in it. I stopped at Harvard Chavis’ before I brought this man; tbe shooting was approximately fifty yards from bis bouse and I went and got tbe pistol; Harvard Chavis went in tbe bouse and got a pistol and gave it to me. He (Harvard) told me be and Brieey’s father, James Hammonds, taken tbe pistol away from him; said Jim told him to keep tbe pistol until some officer or other came after it and I went to tbe bouse and be delivered tbe pistol to me. When be turned it over to me I opened it and I saw an empty cartridge in tbe chamber. Tbe pistol was entirely loaded with tbe exception of one empty cartridge in tbe chamber; tbe rest of them were balls. I then brought tbe man on down here and when I come back I turned tbe gun over to Sheriff Wade. ... I found a bole through tbe back of bis bat. ... I saw blood and hair on tbe inside of tbe bat. I saw tbe coat that was lying in tbe Brumbies automobile. . . . When I got back I took Bricey and put him in Sergeant’s automobile and I got in tbe seat in the back and sit with him until we got to tbe jail, and be said, 'I will tell tbe truth about tbe thing,’ be said, ‘liquor caused it all.’ He said, ‘I went to Lizzie Lowry’s for a 25c drink of whiskey and I went to Alleen Carter’s and bought 50c worth of whiskey,’ and be said to Sergeant, ‘that caused all of it.’ ” It was around twelve o’clock when be got to tbe scene of tbe killing. “Bricey Hammonds was sober when we brought him to jail; we brought him to jail around two o’clock, somewhere in tbe neighborhood of two o’clock, I won’t be positive. I bad seen Bricey before tbe shooting; be was sober when I saw him *72before tbe shooting, be was sober the first time I saw him after the shooting. ... I would say it was around 12:15, something like that, that I saw Bricey. I said the shooting took place around 11:45 and I went out to where this thing happened and carried the injured man to Baker Sanatorium. ... I saw Bricey Hammonds out at Inman Bridge when Herbert Lowry had him under arrest and I observed him. I saw him talk, I saw him walk. I saw nothing about the defendant that would indicate he was drinking.” ■

Shelbie "Warrix corroborated Ed Martin’s testimony, and testified, in part: “I could smell whiskey on him but I didn’t see him walk anymore. I heard him talk. He said he hadn’t done nothing. I asked him what he did it for, he said he hadn’t done nothing. I smelled whiskey on him, I wouldn’t say he was sober; he didn’t act like a drunk man, but I think he had had a drink.”

Sergeant F. R. Bell: “I asked him if he ever had any trouble with Mr. Brumbies, and he said ‘No, sir, Captain Brumbies was the finest man I ever knew in my life, never have had a cross word with him, nor he has never said anything to me out of the way.’ I said, ‘Well, why did you shoot him?’ He said, ‘I haven’t done anything, they are just framing up on me.’ Bricey did not mention that Mr. Brumbies was to carry him home. While I was sitting there talking with him, he was not drunk, he was what I would call about a third drunk; he talked with pretty good sense; he was not drunk and didn’t stagger when he walked; he has a peg leg, and I noticed him very close, he got about mighty well to have just one leg. I smelled the odor of liquor on him and it was stump-hole liquor he was drinking. ... I saw Bricey Hammonds out at Inman Bridge where this homicide took place. I saw him walk.”

Sheriff E. 0. Wade: “I testified that at the time I saw the defendant that afternoon that he had been drinking, you could smell liquor on him. ... I went to the car where Herbert Lowry had this defendant arrested and opened the door — it was a roadster — called Bricey and he got out and walked behind the car and walked down the road, to the other side of the road, and I opened the door and he got in the hack with Mr. Bell and Ed Martin. I didn’t see him stagger. The only thing I could tell about his condition, I could smell the odor of liquor, I couldn’t tell by his actions or walking that he was drunk, but I could smell the odor of whiskey. His appearance, the way he walked, acted and talked, was the same as it is here, except in his talk there, when I asked him two or three different times there, he said he hadn’t done anything.”

Herbert Lowry: “I noticed this man when I arrested him. I noticed him particularly. The reason I was looking at him was because I *73was going to arrest him. When I searched him I smelled whiskey on him but he didn’t stagger and I didn’t ask him any questions and he didn’t talk to me any at all. He didn’t stagger from where I arrested him over to the ear; I taken him over to the car where the shooting was done and put him in the car, and I didn’t talk to him, ask him any questions, and I didn’t see that he was drunk, he wasn’t staggering about any. I walked with him a half mile or three-quarters. That was probably thirty minutes after the thing happened.”

W. F. Bailey: “I saw the defendant this past Sunday when the officers had him up here on the road when he was arrested and observed him. I didn’t see anything that would indicate he was drunk. 1 couldn’t tell it. He was sitting in the patrol car with Sergeant Bell and the glass was rolled down and I was as close to him as here to her (indicating about two feet) ; he was holding his head erect and answering questions Sergeant Bell was asking and he was talking and holding his head erect, sitting erect in the car, didn’t have the appearance of a drunk man in the car.”

D. W. Biggs: “I am coroner of Robeson County. I saw Brieey Ham-monds Sunday evening up near Inman Bridge where the killing took place, he was in an automobile up there. I didn’t hear him talk any then, I heard him talk around at the jail later on. I just saw him sitting in an automobile up there. From what I saw I didn’t see anything that would indicate that he was drunk.”

Brieey Hammonds, the defendant, testified, in part: “James Ham-monds is my father; this is my father sitting here. I am a married man, have one child, my wife is sitting over there with the child. I have been on the chain-gang, I was there in October, November and December. I was confined to the county roads before this past Sunday; I was released Sunday morning. I knew Lacy Brumbies; I saw him on this past Sunday, I first saw him at my daddy’s house. It was somewhere about ten o’clock or ten-thirty when I first saw him; he was at my daddy’s house when I went home. Me and him and my father later went to Pembroke. When he got to Pembroke my daddy got out of the car; he got out at Tyner’s garage.” He then told about getting the liquor from two parties in Pembroke. “Me and Brumbies then left together and come on back and got up with my daddy; we got up with him there at that garage. Well, after he got there he pushed me over and got in the ear or got in over me one, I disremember. I was high and I had sot up with the night man all night long, never even shut my eyes. I remember my daddy getting in the car but I never did remember anything else. I don’t know whether we went some other place or not. The next thing I remember was at my daddy’s, there in the kitchen laying down across the bed. I don’t know how long it was *74after that I was arrested. When I come to my right mind, I was coming to my right senses, I was in the sheriff’s car. I don’t know anything about the shooting, I was drunk. I never had any ill will against Lacy Erumbles, we were friends. I have been in trouble before, three times. I was convicted three times. The first time, me and some ■more boys, I was a young fellow along then, small fellow, went off with some boys and stole a talking machine, I was convicted of that, I served sixty days I believe, as far as I can remember. I was convicted the second time, there was a fellow that stole some tires and laid it to me and I had to pull time for it; I was convicted for that crime, I pulled sixty days for that. The last time I was convicted for whiskey, manufacturing whiskey, and that was the sentence I was serving when I was released Sunday. I have never killed a man before in my life, never have killed Bisk Chavis. I am twenty-four years old, I think. . . . I never said I had been sent there eight months for killing a man and had served five months and Governor Hoey had paroled me; I heard him say that. I know Clarence Locklear, known him all my life. I don’t know whether he is my pastor or not, he has preached in my church, he is a good man. I don’t know what he has against me to come in here and tell that on me, he was my witness, I had him subpoenaed to testify for me. I was not drinking then. . . . Clarence Locklear picked me up in Pembroke and carried me to the Inman Bridge and he carried me within 300 yards of my home. I missed Brumbies. When he did see me I was coming up to the house at my daddy’s.”

The defendant was convicted of murder in the first degree, judgment of death was pronounced on the verdict by the court below. Defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

*Attorney-General McMullan and Assistant Atiorneys-General Bruton and Wettach for the State.*

*David M. Britt for defendant.*

Clarkson, J.

At the close of the State’s evidence and at the close of all the evidence, the defendant in the court below made motions for judgment to dismiss or nonsuit. C. S., 4643. This motion was addressed solely to the charge of murder in the first degree “or by any kind of willful, deliberate and premeditated killing.” C. S., 4200: The record discloses “at the close of the evidence the defendant admits the killing.”

*75In *S. v. Lawrence,*196 N. C., 562 (564) : “On motion to dismiss or judgment of nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe State, and it is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom. ‘An exception to a motion to dismiss in. a criminal action taken after tbe close of tbe State’s evidence, and renewed by defendant after tbe introduction of bis own evidence does not confine tbe appeal to tbe State’s evidence alone, and a conviction will be sustained under tbe second exception if there is any evidence on tbe whole record of tbe defendant’s guilt.’ *S. v. Earp, ante,*at p. 166; *S. v. Carlson,*171 N. C., 818; *S. v. Sigmon,*190 N. C., 684. Tbe evidence favorable alone to tbe State is considered — defendant’s evidence is discarded. *S. v. Utley,*126 N. C., 997. Tbe competency, admissibility and sufficiency of evidence is for tbe court to determine, tbe weight, effect and credibility is for tbe jury. *S. v. Utley, supra; S. v. Blackwelder,*182 N. C., 899.”

Tbe first question to be decided on this appeal: Did tbe court below commit error in overruling tbe defendant’s motion to dismiss as to murder in the first degree? *We*think not. *S. v. Daniel,*139 N. C., 549.

In *S. v. Steele,*190 N. C., 506 (511-12), *Varser, J.,*for tbe court said: “Tbe requirement, in first degree murder, in order to constitute ‘deliberation and .premeditation’ does not require any fixed time before band. These mental processes must be prior to tbe killing, not simultaneous, ‘but a moment of thought may be sufficient to form a fixed design to kill.’ *S. v. Norwood,*115 N. C., 789; *S. v. McCormac,*116 N. C., 1033; *S. v. Covington,*117 N. C., 834; *S. v. Dowden,*118 N. C., 1145, 1153; *S. v. Thomas,*118 N. C., 1113, 1123; *S. v. Exum,*138 N. C., 599.” *S. v. Buffkin,*209 N. C., 117 (124); *S. v. Bowser,*214 N. C., 249 (253-4); *S. v. Burney,*215 N. C., 598.

In North Carolina there is ample authority for tbe statement that tbe surrounding circumstances and lack of provocation or sudden passion may be taken into consideration by tbe jury in determining whether tbe killing was with premeditation and deliberation. *S. v. McCormac, supra,*1033; *S. v. Roberson,*150 N. C., 837; *S. v. Walker,*173 N. C., 780; *S. v. Roderick,*175 N. C., 722; *S. v. Evans,*198 N. C., 82.

Before tbe killing tbe deceased and tbe defendant seemed to have been friendly. Tbe deceased, with James Hammonds and Harvard Chavis, was fixing tbe tire to Brumbies’ Ford roadster, on account of its going down. Tbe defendant, Brieey Hammonds, when Chavis came up, was standing there and bad a conversation with him. He said to Chavis, “You better fix tbe tire.” The deceased took bis coat off and walked around in front of tbe car and threw tbe coat on tbe seat. *76Chavis saw his badge and pistol. His badge was on his vest and his pistol was in his holster on his right hip. "When Chavis saw the pistol and badge he thought it would be all right to help with the tire. Chavis testified, in part: “Me and James were on our knees and this man (deceased) .he squatted down, kinder short man like. At that time Bricey was standing kinder behind us, behind the guard. While we were kneeling down there and inserted the screw driver to get this other tool down here for me to push it down, I heard a pop and felt the heat side of my head and it kinder deafened me and I jumped up and looked around, Bricey had a pistol in his hand, I seen some smoke around close up and he had a pistol in his hand, and his father he looked at the man first and when he hollered, he said, ‘Bricey, you have shot that man,’ and I happened to look over there, and there was the man, he had fell on his face kinder against the wheel, bottom of the wheel, the inside rim, he fell with his face kinder down there and the blood was gushing out of his mouth and nose. ... I grabbed him (Bricey Hammonds) and held him for his father to come back and take the pistol away from him, so his father came back and wrung the pistol out of his hand and when he wrung the pistol out of his hand I turned him a loose. When his father got the pistol he said, ‘Bricey, good Lord, what did you mean by shooting that man-/ he told him he hadn't done nothing, to keep his mouth shut; that was what Bricey said to him.” The defendant had slipped the pistol from-the holster which was on deceased’s right hip, while he was fixing the tire, and shot him in the back of the head.

We think under the authorities cited, this was plenary evidence to be submitted to the jury on malice, premeditation and deliberation. It is well settled that proof of a motive for the homicide is not necessary where the evidence shows an intentional killing with deliberation and premeditation. *S. v. Buffkin, supra,*125.

On the attitude of premeditation and deliberation, the action of defendant speaks louder than words. There was enough evidence to be submitted to the jury that he did the awful deed cooly, with malice, premeditation and deliberation. He saw the pistol in the holster on deceased’s hip, he thought out and resolved in his mind and planned to get the revolver slyly without the deceased’s knowledge. After getting-the pistol out of the holster, standing behind him, he fired the pistol into the back of deceased’s head and killed him.

*Craft v. State, 3*Kansas, 447, relied on by defendant, is not in point. It says: “ ‘. . . nothing in the manner of the killing ... to indicate that there has been premeditation.’ ” In this case we have the manner of killing, slyly slipping the pistol from the holster on deceased’s hip so that he would not know it, and shooting him from behind in the head. After the fatal act defendant told his father “He *77hadn’t done nothing, to keep his month shut.” Gain, the first murderer, said: “I know not; am I my brother’s keeper.” The evidence evinces that defendant was prompted by an evil heart, desperately wicked and fatally bent upon mischief.

The second question to be decided on this appeal: Was there error in the charge of the court below as regards drunkenness or intoxication as a defense to the killing? We think not.

The defendant contended he was drunk or intoxicated to such an extent that he could not form any intent to commit the criminal act. The court charges on this aspect, in part: “Drunkenness is no excuse for crime and has often been said, but where a specific intent — and I charge you a specific intent is essential to convict of the crime of murder in the first degree — is essential to the criminality of the act, or there must be premeditation or deliberation or some mental process of the kind, in order to determine the degree of the crime, it is proper to consider the prisoner’s mental condition at the time of the alleged offense, so committed; if he was not able for any reason to think out beforehand what he intended to do, and to weigh it and understand the nature and consequence of his act, he could not be held to the same measure of responsibility as one with better faculties and a clearer mind should be. . . . And a person who commits a crime while so. drunk as to be incapable of forming a deliberate and premeditated design to kill is not guilty of murder in the first degree. . . . Where a specific intent is essential to constitute crime, the fact of intoxication may negative its existence. Accordingly, since the statute dividing the crime of murder into two degrees and in cases where it becomes necessary, in order to convict an offender of murder in the first degree, to establish that the killing was deliberate and premeditated, these terms contain, as an essential element of the crime of murder, a purpose to kill previously formed after weighing the matter, a mental process, embodying a specific, definite intent, and if it is shown that an offender, charged with such crime, is so drunk that he is utterly unable to form or entertain this essential purpose, he should not be convicted of the higher offense of murder in the first degree. . . . If a person when he is cold sober, forms a deliberate intent to kill a person and after he has formed that intent to kill a person, he then becomes intoxicated and while intoxicated kills a person, the fact that he was intoxicated would not reduce murder in the first degree to murder in the second degree. You understand that, gentlemen? To make such defense available, the evidence must show that at the time of the killing, the prisoner’s mind and reason was so completely and utterly incapable of forming a deliberate and premeditated purpose to kill. As the doctrine is one that is dangerous in its application, it is allowed only in very clear cases, *78and where the evidence shows that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants to whatever extent in order to carry out the design will not avail as a defense.” Taking the charge as a whole and not disjointedly, we see no error in the charge.

In *S. v. Kale,*124 N. C., 816 (819), it is written: “If one voluntarily becomes drunk and kills, without justification, he is guilty of murder. *S. v. Wilson,*104 N. C., 868. The test of accountability is the ability of the accused to distinguish right from wrong and that in doing a criminal act he is doing wrong. When killing with a deadly weapon is admitted or proved the law implies malice and the burden of showing the absence of malice is upon the defendant. Drunkenness at the time the crime is committed, nothing else appearing, does not repel malice nor lower the grade of the crime. The law recognizes the dethronement of reason, as an insanity for instance, as an excuse. *S. v. Potts,*100 N. C., 457. 'Voluntary drunkenness is never an excuse for the commission of a crime.’ *S. v. Keath,*83 N. C., 626. If one charged with murder has premeditated and deliberately formed the intention to kill and did kill the deceased, when drunk, the offense is not reduced to murder in the second degree. *S. v. McDaniel,*115 N. C., 807. Of course the killing and its manner, the intent, intoxication, how it *comes*about and for what purpose drunkenness takes place, and the like, are questions for the jury under the court’s instructions as to the law applicable thereto.”

The charge of the court below seems to be taken from *S. v. Murphy,*157 N. C., 614 (617, 618, 619). *S. v. Alston,*210 N. C., 258; *S. v. Edwards,*211 N. C., 555; *S. v. Hawkins,*214 N. C., 326 (333); *S. v. Adams,*214 N. C., 501 (505); *S. v. Bracy,*215 N. C., 248.

The burden rests upon defendant to prove the defense of drunkenness to the satisfaction of the jury to mitigate the offense. *S. v. Bracy, supra,*255, 257.

The defendant contends that the charge was erroneous as there was no evidence that the defendant had formed any intent to kill deceased before he got drunk. Taking the evidence and the charge as a whole, we see no prejudicial or reversible error. We do not think the charge, as a whole, impinged C. S., 564, and is not so conflicting that it could not be reconciled. In fact, it is favorable to defendant. In the very beginning of the charge of the court below is the following: “I instruct you, gentlemen of the jury, that you have the right under the evidence in this case, to render either one of several verdicts. You may find the defendant guilty of murder in the first degree, guilty of murder in the second degree, guilty of manslaughter, or you may find him not guilty, as you may find the facts to be from the evidence in the case. So your *79charge is to say by your verdict whether the prisoner is guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty. It is a matter solely for you to determine whether he is guilty of the felony and murder whereof he stands indicted and determine the grade or degree of guilt, if any you shall find, or to say by your verdict he is not guilty of either offense charged in the bill of indictment as you may find the evidence shall warrant.” The court went on and defined correctly murder in the first and second degrees and manslaughter, malice, intent, reasonable doubt. The law applicable to the facts was carefully given. The contention to the charge as regards testimony of interested persons is untenable. The court charged: “And if, from the testimony, or from it and the other facts and circumstances in the case, the jury believes such witnesses have sworn the truth, then they are entitled to as full credit as any other witness, and you should give that testimony as much weight as the testimony of a disinterested witness.”

From a careful reading and re-reading the charge of the court below, it seems as if the learned judge took unusual pains in trying the case following the law as laid down by this Court and applying the law applicable to the facts.

In the judgment we see no prejudicial or reversible error.

No error.