We have carefully reviewed the record in this case and find no error.
There was an exception taken by counsel for the prisoner in this Court that it did not appear in the transcript of the case from Jackson County to Swain County, where the trial was had, that it was certified under the official seal of the Superior Court of the former county.
The exception is untenable, for it is held "the court to which, on the removal of a cause, the transcript of the record is sent, is the sole judge whether the transcript is properly verified by the seal of the court from which it is sent, and all other courts are bound by its decision. S. v.Duncan, 28 N.C. 236; S. v. Moses, 13 N.C. 452. The transcript sent to this Court is but a copy of the transcript from the court of Jackson to the court of Swain, and therefore could not have the impression of the seal of the Superior Court of Jackson County.
The court below committed no error in refusing to give the instructions asked. The first two instructions could not have been given, for where the killing is proved, malice is always presumed, and it is incumbent upon the prisoner to show the matter in extenuation, unless it is brought out in the testimony offered by the State. This (623) doctrine has been so repeatedly decided by the court that it is needless to cite any authority.
The third instruction could not be given, for there is no such rule as that indicated in the instruction. The rule is when the testimony is *Page 524 conflicting it is the duty of the jury to reconcile it if possible, and if that cannot be done, then they must determine which testimony is the more credible. But in this case there does not appear to be any material conflict in the testimony adduced by the State.
The fourth exception is without any evidence to support it. It is not made to appear that the prisoner, while lying on the ground, was trodden upon by any one, much less by the deceased, who did not leave the house until after the prisoner had got into the wagon; so there was no such provocation as that mentioned in the instruction which could have aroused the passions of the prisoner.
As to the exceptions taken on the trial to the ruling of the court in excluding the testimony by which the prisoner proposed to show that Bragg Jones had a motive to kill the deceased, it was clearly not sustainable. InS. v. Davis, 77 N.C. 483, it is held that "evidence that a third party had malice toward the deceased, a motive to take his life and an opportunity to do so, and had made threats against him, and that some time before deceased was killed he went in the direction of deceased's house with a deadly weapon, threatening to kill him, was inadmissible." S. v.Jones, 80 N.C. 415; S. v. Beverly, 88 N.C. 632; S. v. Boon, 80 N.C. 461;S. v. Gee, 92 N.C. 756. Here there was no evidence proposed to be offered to connect Bragg Jones with the homicide except that he was a distiller of illicit liquor and the deceased was a revenue officer.
One of the grounds assigned by the prisoner why a new trial should be awarded him was the fact that one of the jurors was under twenty-one years of age, and was not a freeholder, and the disqualification of the juror was not discovered until after he was tendered and (624) accepted by the prisoner and sworn. But it appears that the juror, as soon as he was sworn and before he took his seat in the box, stated, in the hearing of the court and counsel, that his father said "he was not twenty-one," yet the prisoner made no objection. If he had then moved for leave to challenge the juror for cause it would have been competent for the court to allow the challenge. S. v. Adair, 66 N.C. 298. The challenge to a juror for cause must be made in apt time. It is too late, after a juror has been accepted by the prisoner and has served on the trial, to except to him for incompetency. S. v. Patrick, 48 N.C. 443; S.v. Greenwood, 2 N.C. 141; S. v. Davis, 80 N.C. 412.
But when the incompetency is not discovered until after verdict, it is then a matter of discretion for the judge, whether he will, under such circumstances, grant a new trial; but his refusal to do so is not reviewable. S. v. Perkins, 66 N.C. 126; S. v. Davis, supra; Spicer v.Fulghum, 67 N.C. 18. *Page 525
There is no error. This opinion must be certified to the Superior Court of Swain County that the case may be proceeded with in conformity to this opinion and the law of the land.
No error. Affirmed.
Cited: S. v. Wilson, 104 N.C. 873; S. v. Council, 129 N.C. 517; S.v. Maultsby, 130 N.C. 665; S. v. Lipscomb, 134 N.C. 697; S. v.Millican, 158 N.C. 621; S. v. Fogleman, 164 N.C. 461; S. v. Lane,166 N.C. 338; S. v. Upton, 170 N.C. 771; S. v. Wiggins, 171 N.C. 816;Carter v. King, 174 N.C. 551; Wilson v. Batchelor, 182 N.C. 95; S. v.Levy, 187 N.C. 586; S. v. Lea, 203 N.C. 321, 322; S. v.Edwards, 205 N.C. 663; S. v. Sheffield, 206 N.C. 387;S. v. Ferrell, 206 N.C. 739.