There was no error in the refusal of the court to hear evidence in support of the motion of the defendant that the indictment in this case be quashed on the ground that the bill was- found by the grand jury to be a true bill'on evidence which was wholly incompetent. Conceding that the facts are as contended by the defendant, there was no error in the denial of the motion, for the reason that the motion was made at April Term, 1934, áfter the defendant, on his arraignment at December Term, 1933, had entered a plea of not guilty. The motion to quash, which may be treated as a plea in abatement, was not made in apt time.
In S. v. Moore, 204 N. C., 545, 168 S. E., 842, it is said: “It is well settled as the law of this State that when a bill of indictment has been returned by the grand jury as a true bill upon testimony, all of which was incompetent, or upon the testimony of witnesses all of whom were disqualified by statute or by some well-settled principle of law in force in this State, the indictment will be quashed on the motion of the defendant, made in apt time; but where some of the testimony was competent and some incompetent, or some of the witnesses were qualified and some disqualified, the court will not go into the barren inquiry of how far testimony which was incompetent or witnesses who were disqualified contributed to the finding of the bill of indictment as a true bill. S. v. Levy, 200 N. C., 586, 158 S. E., 94; S. v. Mitchem, 188 N. C., 608, 125 S. E., 190; S. v. Coates, 130 N. C., 701, 41 S. E., 706. This is the general rule in other jurisdictions. 31 C. J., 808, and cases cited.”
In S. v. Levy, supra, it was held that there was no error in the refusal of the court to hear witnesses who had testified before the grand jury, in support of the defendant’s motion that the indictment be quashed on the ground that the bill was found a true bill solely on the testimony of these witnesses, which was incompetent because wholly hearsay. In the opinion in that case the late' Justice Adams, speaking for the Court, says: “The suggested practice would hinder the trial and result in useless delay. It would often require the examination of a number of witnesses, including, perchance, members of the grand jury; it would demand of the judge that he invade the province of the grand jury or exercise the function of a petit jury in finding the facts from conflicting evidence and passing upon the credibility of witnesses; it would turn the Superior Court into a forum for an unseemly contest between members of the grand jury and those whom they may have charged with crime. Besides, such a practice is unnecessary; if the evidence is incompetent it will be excluded by the trial court.”
In S. v. Pace, 159 N. C., 462, 74 S. E., 1018, it is said: “It is well settled that a plea in abatement, or a motion to quash a bill of indictment after a plea of not guilty is entered, is only allowed in the discre-*680ti'on of tbe court. His Honor declined, in bis discretion, to permit tbe plea to be filed. Tbe exercise of bis discretion is not reviewable by us. S. v. Jones, 88 N. C., 672.”
Tbe first assignment of error on tbis appeal, based on defendant’s exception to the denial of bis motion that the hill he quashed for the reasons assigned, cannot be sustained.
Tbe assignments of error based on defendant’s exceptions to tbe refusal of tbe court to sustain bis objections to evidence offered by tbe State cannot be sustained.
Tbe evidence tending to sbow tbat tbe custom of tbe deceased to bave in bis possession at bis place of business in Yaldese, on Thursday and Friday of each week, a large sum of money was competent as tending to sbow tbat tbe deceased bad such sum of money in bis possession on tbe night of tbe homicide, and tbat tbe homicide was murder in tbe first degree, as contended by tbe State. There was evidence also tending to sbow facts from which tbe jury might well infer tbat tbe defendant, when be returned to Yaldese from bis borne in Lenoir on Thursday afternoon knew tbat tbe deceased bad gone to Morganton tbat day and returned to Yaldese with a large sum of money.
Tbe evidence tending to sbow tbat tbe defendant was not at bis father’s borne in Lenoir when tbe officers went there, after tbe arrest of Alvin Eller, in search of tbe defendant, was at least not prejudicial to tbe defendant, whose evidence tended to sbow tbat bis absence from bis father’s home, where be was living at tbe date of tbe homicide, bad no connection with tbe charge against him in tbis case. Tbe evidence for tbe defendant tended to show tbat be left bis father’s home several days after tbe homicide and before be was accused of tbe murder of tbe deceased, and went to a distant state, in compliance with tbe terms of a judgment against tbe defendant in a criminal action pending in the Superior Court of Caldwell County. Tbis evidence was properly submitted to tbe jury as tending to rebut any presumption against tbe defendant in tbis case, from bis absence from bis home after tbe murder of Augustus Bounos.
Tbe evidence tending to sbow tbat after be was shot and fatally wounded on Thursday night and before be died in tbe hospital at Mor-ganton on tbe following Sunday, tbe deceased made statements to bis brother tending to sbow tbat be was shot and wounded while be was attempting to recover tbe money of which be bad been robbed, were competent as dying declarations. Before making these statements as testified by bis brother, tbe deceased, in response to questions as to bow be felt, bad said: “Tbe man got me; I am suffering terribly, I can’t make it; I ain’t going to make it; I do not know tbe name of tbe man who shot me, but would know him if I could see him again; he has been in and around Yaldese for tbe past few weeks.”
*681Tbe evidence was sufficient to show that at the time he made the statements the deceased was in actual danger of death, and that he was fully apprehensive of his approaching death. The statements made by the deceased under these conditions were properly admitted as dying declarations. S. v. Ham, 205 N. C., 749, 172 S. E., 473, and cases cited.
The defendant assigns as error the instruction of the court to the jury that the jury would not be justified in finding the defendant in this case guilty unless the jury was satisfied beyond a reasonable doubt of his guilt “from the evidence or the lack of evidence in the case.” The defendant’s contention that by this instruction the court imposed upon the defendant the burden to establish his alibi by his evidence cannot be sustained. Conceding that the instruction standing alone is erroneous, when considered in connection with the entire instruction as to the burden of proof in the case, it cannot be held that it was prejudicial to the defendant. In S. v. Freeman, 100 N. C., 429, 5 S. E., 921, it is said:
“While we do not assent to what is said about the shifting of the burden of proof, when the proof offered by the prisoner tends to show his absence from the place where the offense was perpetrated, and his presence elsewhere at the time, yet the charge in general is so clear and explicit as to what is required of the State in order to a conviction, that it could not be misleading to the jury, fairly considered.”
We find no error in the trial of this action. The judgment is affirmed.
No error.