#### STATE v. BEN POSEY.

(Filed 15 June, 1932.)

Homicide G d — Evidence held competent on question of premeditation and deliberation.

In a prosecution for murder evidence that the defendant, his father, and another, all armed, went to the house of the deceased, and that the father told the deceased’s wife that they were and had been hunting “them men” is held competent on the issue of premeditation and deliberation, the defendant being present and acquiescing therein, and there being other evidence that a feud existed between the families of the deceased and the defendant and that other threats had been made, and further, upon a verdict of the jury of guilty of second degree murder the admission of the evidence, if error, would not be prejudicial.

Appeal by defendant from *Harding, J.,*at October-November Term, 1931, of SWAIN.

Criminal prosecution tried upon indictment charging the defendant with the murder of one Jud Pilkey.

Verdict: Guilty of murder in the second degree.

*5Judgment: Imprisonment in tbe State’s prison at bard labor for a term of 20 years.

Defendant appeals, assigning errors.

*Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.*

*Alley & Alley and Edwards & Leatherwood for defendant.*

Stacy, C. J.

The evidence on bebalf of the State tends to sbow tbat around noon, 11 July, 1931, the defendant, Ben Posey, ambusbed bim-self near the Pilkey Creek road in Swain County and sbot and killed Jud Pilkey as the latter came along with bis brother on a wagon. They bad been bauling logs from the woods to the railroad station and were returning borne in the beat of the day when they stopped at the bill to let the borses cool. “I sat down on the bank by the side of the road,” Andy Pilkey testifying, “and my brother was still on the wagon. We beard something Pop, pop, right over us, and my brother looked up and said: ‘Lord have mercy, there be is,’ and I looked up and saw Ben Posey with bis gun presented on my brother.” The deceased fired his shot gun in the direction of the defendant and ran down the road. The defendant returned the fire with a rifle sbot which bit the deceased on the left side of his bead, pretty close to the forehead, and killed him.

Tbe defendant says that when be saw tbe deceased and his brother resting in the road, be went around up on tbe bank in order to keep from meeting or coming in contact with them, and there stepped on a bush which broke with a loud noise and attracted the attention of tbe deceased and bis brother, and tbat be only returned the fire in self-defense.

A feud bad existed between the Pilkeys and the Poseys and members of both families had armed themselves in anticipation of an open engagement at any time.

In fact, about eleven days prior to tbe homicide tbe defendant, his father, and another, all armed, went to tbe borne of tbe deceased and called for him. He was away at the time. Mrs. Pilkey asked them not to come into the bouse; whereupon tbe father, in tbe presence of the defendant, said: “We are bunting for them men and their weapons. We have been bunting for them all day and we mean to have them.” (Objection; exception.)

Tbe defendant’s principal exception is to the admission of this evidence. The exception is without merit. The father of the defendant was not speaking for himself alone. The others were present acquiescing and “consenting unto the wrong.” Only two days before the defendant had *6met Mrs. Pilkey in the road and asked her where her husband was. On receiving no reply, he remarked: “I am going to kill the s — o—b when I see him.” Furthermore, this evidence was offered on the question of premeditation and deliberation, to show threats, and as the defendant was acquitted of the capital offense, its admission, if erroneous, in no event could be held for reversible error.

The jury was fully justified in returning a verdict of murder in the second degree.

No error.