dissenting: The Code, §1200 is unambiguous. It restricts the State as to its peremptory challenges so that they can only be demanded as a right'before the juror is tendered to the prisoner. This section does not purport to be a restriction upon the Court in the exercise of its'immemorial privilege and duty of permitting challenges or excusing jurors at any time before the jury is impaneled whenever this is required in the interest of a fair and impartial trial. It is certainly too late in this State to contest the settled principle that the defendant has the right to reject, not the right to select, a juror. In the present case no man sat on the jury to whom the prisoner objected. He has no just ground of complaint that one did not sit on the jury whom he would have wished to do so. The juror challenged himself. He said he was a life-long and intimate friend of the prisoner, and connected with him by marriage. An investigation of the latter statement showed that the connection by marriage was not such as in law to disqualify him. The relations of the juror with the prisoner were not previously known to the State. The State had not exhausted its peremptory challenges. The juror did not think he was an impartial juror, and challenged himself. The Court might well have excused him ex mero onotu. It exercised its legitimate duty in permitting the State to peremptorily challenge him, when it had lost its right to demand to do so, by not exercising it sooner. In at least seven cases this Court has *904held that the trial Judge may in his discretion permit a juror to be challenged by the State after he has been tendered to the defendant. State v. Green, 95 N. C., 611; State v. Adair, 66 N. C., 298; State v. Jones, 80 N. C., 415; State v. Boon, 80 N. C., 461; State v. Vestal, 82 N. C., 563; State v. Vann, 82 N. C., 631, and State v. Cunningham, 72 N. C., 469, and there are several others. It is true that in most, if not all, these cases the challenge was for cause. But the principle is exactly the same. As a matter of right the State can challenge neither for cause nor peremptorily after the juror is tendered to the prisoner. The allowance of any challenge to the State thereafter is not of right, but in the discretion of the Court. Such power is wisely vested in the discretion of the Court, as was said by Pearson, G. J., in State v. Adair, supra, “to secure a jury indifferent as between the State and the prisoner.” In State v. Green, supra, Ashe, J., calls attention to the fact that the challenge allowed the State after the juror was tendered “was not strictly a challenge for cause, but a challenge to the favor, which is when the party has no particular cause of challenge, but objects that the juror is not indifferent on account of some, suspicion of partiality, prejudice or the like.” That challenge was held to have been correctly allowed. That case is exactly the case here, only the State was more hardly dealt with here, in being required to exhaust one of its peremptory challenges. In the above cause the juror was stood aside for cause allowed in the discretion of the Court after he was tendered. It will be difficult to know what is the law-applicable to the trial of capital cases if a principle heretofore settled by so many precedents is to be summarily swept aside. The juror properly challenged himself. ITe knew he ought not to sit on the case. The prisoner has no right to select any juror. His right lies solely in rejecting improper or objectionable jurors.
*905The juror, John C. Tew, on his voir dire swore that he had not formed or expressed the opinion that the prisoner at the bar was guilty. After verdict, when the jurors had been, discharged, and doubtless had gone to their homes, an affidavit was filed by some one that Tew had made a different statement. The J-udge stated that the affidavit was not sufficiently strong, and declined to set the verdict aside on that ground. The palpable. meaning is that the affidavit was not sufficiently strong to convince him that Tew had foresworn himself. AVe do not know the character or credibility of the party making the impeaching affidavit. He may have been entirely unworthy of belief, or quite otherwise. But it rested with the presiding Judge to pass upon that. He did so. He said the affidavit was not sufficiently strong, and, as it did not satisfy him, declined the motion. This is, in effect, a distinct finding of fact. But it has been too recently decided by this Court in State v. DeGraff, 113 N. C., 688, affirming former precedents, to need discussion that, where the facts are not found by the trial Judge and spread upon the record, the affidavits of grounds for a new trial cannot be considered in this Court. If this ruling of the Judge was not a finding of fact that the affidavit was insufficient to convince him, we cannot consider the affidavit. State v. DeGraff, supra. If it was in effect such finding, the finding is conclusive. It would be a cruel misapprehension of the language of the impartial Judge who presided at the trial to construe him as meaning to find that the impeaching affidavit was true, that a juror had perjured himself in order to get upon the jury, but that such fact was not strong enough to warrant setting aside the verdict. Thq Judge does not find the impeaching affidavit to be true and insufficient, but he finds the affidavit not strong-enough. This, coupled with his refusal to set aside the verdict, can mean but one thing — that he did not believe the *906impeaching affidavit. It will be dangerous to act as juror in a capital case — always and to every one sufficiently unpleasant — if, after the juror has been discharged and gone home, the fact that some person can be found to file an affidavit that a juror had perjured himself on his voir dire, which affidavit the presiding Judge disallows and refuses the motion — if upon such facts a new trial can be obtained upon appeal on the ground that the juror had committed perjury. The presiding Judge did not so find. On the contrary, he refused the motion based upon such affidavit. There is certainly nothing in the action of the Judge which warrants the juror being pilloried for all time in the printed report of this case as having sworn falsely on his voir dire in order that he might convict a fellow-being of a capital offence, nor that the Judge held as a matter of law that such fact was insufficient to warrant a new trial.
Nor is there any error under our precedents in the charge of the learned Judge. The killing with a deadly weapon having been shown, the law presumes malice aforethought, as charged in the indictment. No other principle is more indisputably settled by all our authorities. Malice aforethought is premeditation. The Judge correctly told the jury that such malice or premeditation might be presumed or inferred from the use of a deadly weapon. The facts and circumstances “in proof might mitigate the offence to murder in the second degree or to manslaughter, or to self-defence, but the burden was upon the prisoner to show the matters of mitigation or excuse, either by the State’s evidence or by the evidence offered in his behalf. State v. Rollins, 113 N. C., 734, and numerous cases there collected.
There can bo no discussion of the wisdom of the policy of dividing the crime of murder into two degree. The Legislature is the sole judge of that, and the wisdom of its *907action cannot be called in question in this co-ordinate department, and, in fact, it has not been. That question does not arise. But in all cases, whenever the proof of certain facts raises a presumption and shifts the burden upon the defendant, the presumption is as to the offence with which the defendant is charged in the indictment, and not of an inferior offence. The indictment here charges the-prisoner with the crime of murder in the first degree, not murder in the second degree. The prisoner under this bill can be found guilty of the felony whereof he stands charged, or of inferior degrees of it according to the proof, as murder in the second degree, manslaughter, assault, or he can be acquitted. But when the killing with a deadly weapon is shown the law presumes malice, and upon all our authorities the prisoner should be convicted (as the learned Judge charged) of the crime whereof he stands charged, unless he shows that state of facts which would mitigate the offence to an inferior offence, as murder in the second degree, or manslaughter, or self-defence, etc. In establishing the offence of murder in the second degree the Legislature did not intend to abolisli the offence bf murder in the first degree. It only meant that the offence should be mitigated to that if the evidence shows that the prisoner is entitled to the benefit thereof. The killing with a deadly weapon having been shown, the jury under all our precedents should have found the prisoner guilty of murder in the first degree, as charged in the indictment, unless matters were shown reducing it to a lesser offence. While the statute certainly creates the lesser offence of murder in the second degree there is nothing in the statute which intimates a change in the ancient and well-settled rule of law which raises a presumption of guilt as to the offence, murder as charged, from the fact of killing with a deadly weapon. Nor is there reason for the Courts to change a *908rule founded in profound wisdom and so long and uniformly adhered to. Already in trials for homicide the State is at enormous disadvantage. While the law establishes an inferior degree of murder, there is no ground to render it more difficult for the State to establish guilt or to give added technical advantages in the trial to the defendant, which will virtually abolish convictions for murder in the first degree in all cases. The humanity of our law already gives the prisoner on trial for a capital offence every possible advantage consistent with the enforcement of the law. There is no reason they should be added to. ITe has twenty-three peremptory challenges, while the State has but four.
Ilis guilt must be shown beyond a reasonable doubt. Twelve jurors must concur in finding him guilty. He has the great advantage that erroneous rulings of the presiding Judge, if in his favor, cannot be corrected, while a single erroneous ruling against him vitiates the whole proceeding. The sympathy of the jury in favor of a fellow-being in jeopardy of his life is easily appealed to and readily evoked. The legal technicalities of the trial are quickly availed of, if one is violated, by skillful counsel. Under these circumstances convictions for capital offences are rare, and more men each year suffer that punishment without process of law than by its authority. The executive and legislative departments of the Government strive in vain to prevent the growing lawlessness in that regard. Whether capital punishment should be abolished or not rests with the people acting through their accredited representatives. But as long as the penalty of death is denounced by the statute it should be borne in mind that a trial for a capital offence is a solemn, serious proceeding, -which society has decreed as necessary for its safety and well-being. It is not to be approached from the sentimental or humanitarian side. The sole object should be the cold, impartial *909ascertainmeut of the facts pertaining to the charge. When, notwithstanding the great advantages guaranteed the prisoner by the humanity of the laws and the humane interpretation and administration of them, both by this Court and by the humane Judges who administer the law in the Superior Courts- — when, notwithstanding all this, the unanimous verdict of a jury has pronounced the prisoner guilty, and the Judge has overruled the exceptions in his favor, there is a duty which the Courts owe to society. The presumption in the Court below is in favor of the innocence of the prisonei’. When that is overcome by verdict and judgment on appeal ever}’ presumption in this, as in all other cases, is in favor of the correctness of the proceeding below. That presumption has not been overcome. This Court rules only upon errors of law assigned in the rulings of the Judge. The rulings excepted to in this case are each and all sustained by ample authority, as above cited.
If there are matters outside of the challenged rulings of the Judge which make in favor of the prisoner, it is beyond the power of this Court to consider them. The prerogative of mercy is unlimited, but its exercise rests not here. It is ■entrusted to another department of the Government.