We have examined the charge of his Honor with great care, and find no error ¿n the charge given, or in the refusal of the special instructions, nor do we concur in the position that the evidence and contentions of the State were unduly emphasized.
The criticism of the charge that ''The burden would be upon the defendant to show facts and circumstances in mitigation,” and, “If the defendant, as heretofore explained by the court, has offered evidence which mitigates the offense,” is supported by S. v. Castle, 133 N. C., 769, upon the ground that such a charge excludes the idea that the prisoner may rely on evidence offered by the State in mitigation; but the court did not let the matter rest here, and, on the contrary, distinctly charged the *327jury that in mitigating or excusing tbe offense tbe prisoner “Eas a right to rely upon evidence offered by tbe State.” His Honor charged tbe jury that they must be satisfied beyond a reasonable doubt that tbe killing was with premeditation and deliberation before they could convict of murder in tbe first degree.
He then further charged that, “Deliberation means to think about, to revolve over in one’s mind; and if a person thinks about tbe performance of an -act and determines in bis mind to do that act, be bad deliberated upon tbe act, gentlemen. Premeditation means to think beforehand, think over a matter beforehand; and where a person forms a purpose to kill another, and weighs this purpose in his mind long enough to form a fixed design to kill at a subsequent time, no matter how soon or how late, and pursuant to said fixed design kills said person, this would be a killing with premeditation and deliberation, and would be murder in the first degree. And the court charges you if you should find beyond a reasonable doubt, gentlemen, that prior to the time he killed the deceased he formed the fixed purpose in his mind to kill him, and that pursuant to that purpose he did kill the deceased because of the purpose in his mind, and not because of any legal provocation that was given by the deceased, then the court charges you that the prisoner would be guilty of murder in the first degree, and it would be your duty to so find.”
The prisoner excepts to the latter part of the charge, contending that “fixed design” is not the equivalent of premeditation and deliberation, and that the prisoner could be convicted, under the instruction, of murder in the first degree, without premeditation and deliberation.
His Honor did not charge that the prisoner could be convicted of murder in the first degree because of the existence of a fixed design to kill, although there is authority justifying the charge (S. v. Dowden, 118 N. C., 1145; S. v. Barrett, 142 N. C., 565; S. v. Jones, 145 N. C., 466); but he was careful to,tell the jury that they must find premeditation and deliberation; he explained accurately the meaning of these terms, and then said the killing must have been pursuant to the fixed purpose, and not on account of any legal provocation.
*328*Tbe charge, considered as a whole, excludes the idea that the prisoner could be convicted because of the fixed design, although formed under circumstances that would mitigate or excuse.
In the Bowden case the Court says: “The word ‘premeditate’ means to think beforehand — as where a man thinks about the commission of an act and concludes or determines in his mind to commit the act; he has thus premeditated the commission of the act. The law does not lay down any rule as to the time which must elapse between the moment when a person premeditates or comes to the determination in his own mind to kill another person, and the moment when he does the killing, as a test. It is not a question of time. It is merely a question of whether the accused formed in his own mind the determination to kill the deceased, and then at some subsequent period, either immediate or remote, does carry his previously formed determination into effect by killing the deceased.” And in the Barrett case: “The rule laid down in this State is, that where the prisoner weighs the purpose to kill long enough to form a fixed design, and then puts it into execution, it is murder in the first degree.”
In the section from Wharton on Homicide, p. 161, relied on by the prisoner, while it is said that the formed design is not the equivalent of premeditation and deliberation, since the design may have been formed under circumstances of justification or excuse, the author also says: “That the homicide was determined upon beforehand, and purposely committed after reflection, with malice, however, is the equivalent of the willfulness, deliberation, malice, and premeditation required by the statute,” which is in accord with the charge given.
The jurors were fully instructed as to the rights and duties of the prisoner, and of the deceased as an officer, at the time of the killing. They were told that the deceased had no right to arrest on account of the affray at the car shed, because that was a past transaction, and he had no warrant; that if he was attempting to arrest for that affray, the prisoner had the right “to use whatever reasonable force was necessary to prevent the arrest,” and if reasonably necessary for that purpose to present his gun, he had the right to do so, and he would not be guilty *329of an assault in so doing; that if not guilty of an assault, the deceased had no right to point a pistol at him, and that if the deceased was killed under these circumstances when necessary to prevent an arrest, the prisoner would be excused, and if not necessary, that his crime would be reduced to manslaughter.
He further charged the jury: “If you find under these circumstances as explained to you, that Mr. Bain had not attempted to arrest him there, and that the defendant drew his gun upon him, and that Mr. Bain was an acting officer, and that he declared his purpose then to arrest him for the assault upon him, then the court charges you that he had a right to arrest him, and had the right to do it even for an assault, and even though the assault may have been committed upon Mr. Bain;' that would be a breach of the peace, a crime, and though it may have personally affected Mr. Bain-, it affected the public at large as well, and he would have a right, for a breach of the peace of that kind, to arrest him. And if you further find from the evidence that he made this announcement in the presence of the defendant, near enough for him, the defendant, to hear, that he was going to arrest him for that (referring to the drawing of the gun), and then that he ordered him to halt, then the court charges you that it was the duty of the defendant to stop, not to go on. If he ordered him to halt again, it was still his duty to stop and not to go on, and if you further find from the evidence that he ordered him to halt a third or fourth time, and told him this was the last time he was going to order him to halt, and he didn’t have his pistol drawn on him at all — simply had it in his hand, or maybe not drawn out from his pocket — then the court, instructs you that if the prisoner turned and shot him under those circumstances, that he would be at least guilty of murder in the sécond degree.”
The last two'paragraphs are excepted to principally'upon the grounds—
(1) That the deceased had no right to arrest for an assault upon himself.
(2) That if he had the right to arrest, he had no right to use a pistol, because the offense was a misdemeanor.
*330(3) That if be bad tbe right to arrest, he could only do so immediately up.on tbe assault being committed, and not after be bad permitted tbe prisoner to go 50 or 75 yards.
Tbe assault upon tbe deceased was not an offense against tbe individual, but one against tbe public, and for this reason tbe authorities generally support tbe position that it is tbe right of a peace officer to arrest, without warrant, one who assaults him (3 Cyc., 880; Montgomery v. Sutton, 67 Iowa, 497; Leddy v. Crossman, 108 Mass., 237), and tbe officer did not lose tbe right in this ease because tbe prisoner bad walked off, according to tbe evidence of one witness, 30 or 40 feet, and to that of another, 50 or 75 yards.
Tbe second position presents greater difficulty, because it is generally held that an officer cannot kill to affect an arrest or to prevent tbe escape of one charged with a misdemeanor. S. v. Phillips, 67 L. R. A., 200, note, where tbe authorities are collected. It was well said in Thomas v. Kinkead, 29 A. S. R., 73, that as tbe lawmaking power itself could not inflict tbe death penalty as a punishment for a misdemeanor, “it would ill become tbe ‘majesty’ of tbe law to sacrifice a human life to avoid a failure of justice in tbe case of a petty offender who is often brought into court without arrest and dismissed with a nominal fine.”
It'must be noted, however, that tbe prisoner was armed with a gun, which be bad presented a few minutes before, and that be bad declared bis purpose to kill any one who tried to arrest him; and further, that tbe deceased did not shoot in tbe first instance. He bad tbe pistol presented, .it is true, but if be bad tbe right to arrest, this was not only necessary to enable him to effect tbe arrest, but also to prevent tbe use of tbe gun.
In S. v. Garrett, 60 N. C., 149, which was an indictment against an officer for killing one charged with- a misdemeanor, whom be was trying to arrest, tbe Court says: “His Honor ought to have instructed tbe jury that, as tbe deceased bad put himself in resistance to tbe officer and bis guard, they were not only authorized, but were bound, to use such a degree of force as was necessary in order to execute tbe warrants, and were entitled to a verdict of acquittal on tbe ground that tbe homicide was justifiable, if no unnecessary violence bad been used, unless from *331the fact that the prisoner had started to cross the fence the jury should be satisfied that he had abandoned his deadly purpose of resisting to the death the execution of the law, and was attempting to make his escape by moving off; in which event there was no longer any necessity for shooting; and the officer, or some portion of his men, should have run after him and captured him in that way.”
The case of S. v. Horner, 139 N. C., 607, is in many respects like the one before us, and S. v. Durham, 141 N. C., 744, is almost directly in point.
In the Durham case the prisoner was arrested upon a warrant charging a misdemeanor, and carried to the office of a justice. He slipped out and began running. He looked back and saw the officer pursuing him, about 20 yards distant, with a pistol in his hand, which was pointed at him. He then drew his pistol, but did not present it. The officer then shot at the prisoner, and the prisoner returned the fire. The officer shot a second time, grazing the aim of the prisoner, when he turned and shot and killed the officer. A conviction of murder in the second degree was sustained, there being no evidence of premeditation and deliberation, and the Court said: “The officer is not excused if he, with undue violence, menaces the. life of the defendant when he attempts to arrest a person for a misdemeanor. The officer may be convicted and punished. But his crime will not excuse or condone the crime of the defendant in making open resistance to the .process of the State. ¥e are aware that in some jurisdictions it is held otherwise, and that while an officer, in attempting to arrest for a misdemeanor, dangerously menaces the life of the accused, the latter may defend himself to the extent of taking the officer’s life, and the plea of self-defense is open to him. But in this State we have a statute (Laws 1889, ch. 51) which enacts that ‘any person who willfully and unlawfully resists, delays, or obstructs a public officer in discharging or attempting to discharge a duty of his office shall be guilty of*a misdemeanor.’ At the time he killed the deceased the defendant was engaged in an unlawful act, not only malum in se (being in armed resistance to the process of the State), but an act directly connected with, and which finally *332resulted in, the death of the officer; for it is plain 'that had the defendant himself not resisted the law, but submitted to arrest, there would have been no homicide by any one.”
¥e are, therefore, of opinion there is no error in the instructions complained of.
We do not agree with counsel for the prisoner that his Honor expressed an opinion upon the fact when he said, “And if he killed him with deliberation and premeditation, as heretofore explained to you by the court, and this is shown beyond a reasonable doubt from the evidence, he would be guilty of murder in the first degree.”
In view of the whole charge, the jury could not have understood the judge as saying that premeditation and deliberation had been shown, but that the State must show it beyond a reasonable doubt.
The evidence of premeditation and deliberation was sufficient to be submitted to the jury. S. v. McCormick, 116 N. C., 1033; S. v. Daniels, 164 N. C., 469.
There was evidence that the deceased had tried to arrest the prisoner for the affray at the car shed; that he fled and procured a gun and shells; that immediately before the killing he committed an assault upon the officer, cursed and threatened to kill him.
We have discussed the exceptions chiefly relied on and have considered all that appears in the record, and while there are views of the evidence offered by the State which would have justified a conviction of murder in the second degree or manslaughter, we have no power to revise the findings of the jury, and are constrained to affirm the judgment.
The deceased would not have been killed, nor would the prisoner be now under sentence of death, if the witness for the State had given up the banana which he had wrongfully taken from the boy Madkins, when politely requested to do so; nor if the deceased had not deputized persons to aid him in arresting the prisoner and followed him, when he had no, right to make the arrest for the first affray, having no warrant.
No error.