At the close of the State’s evidence and at the conclusion of all the evidence, the defendant in the court below made motions for judgment of nonsuit. O. S., 4643. The court below overruled these motions and in this we can see no error. The evidence on the part of the State was plenary and abundant to be submitted to a jury as to the defendant’s being guilty of murder in the first degree.
*610Exceptions and assignments of error were made on the trial below to tbe following questions and answers (which cannot be sustained) : "When Orphie Kinsey was being examined by the State, the following-questions and answers were given: “Q. And that’s the reason you are testifying like that? Ans.: No, sir, he didn’t ask me anything about this. He just asked me how I was getting along and how were the children. Q. Who else was there ? Ans.: Cricket Hobbs. Q. Cricket is another one of his women living there ? Ans.: She is a girl that lives there. He raised her and she stays there.” This evidence was to explain the reasons why the witness was conversing with defendant. It may be that the question “Cricket is another one of his women living there?” was improper. The answer destroys the imputation, as the witness answered, “She is a girl that lives there. He raised her and she stays there.” We cannot hold this as prejudicial or reversible error.
When Clifford Harris, the defendant’s employer, was being questioned on cross-examination, the following testimony was admitted: “Q. How many women did he have there ? Ans.: Why, there was, let’s see, about five, I think, grown women. Q. And all of them have children, haven’t they? Ans.: I think so. Q. There are about twenty-odd children around there, are there not ? Ans.: Something like that. Q. And they are his, aren’t they ? Ans.: I don’t know, sir. Q. And some of them are kin to him ? Ans.: Some of the people staying there are kin to him.” When the objection was first made by the defendant it was on the ground that the testimony was not relevant. This evidence was admitted on the ground of motive. The State’s evidence was to the effect that defendant had purchased shells with No. 4 shot and had sent the gun to the tobacco barn and had later had Orphie and her mother, Mordie Kinsey, to go down there with him. Defendant was drinking, cursing, and had a fight with Orphie Kinsey. He tore her clothes. The mother went back towards the house and he shot her. Defendant himself, in his testimony, gave the members of his household. Defendant was angered with Orphie, the daughter of the deceased woman. Orphie had left the home. The reason is given in his testimony. It seems that his motive was to control Orphie and her mother who lived with him — he was head of the household of women and children. On the whole we do not think the evidence prejudicial or reversible error.
The following questions were asked Leo Kinsey, a son of the deceased woman: “Q. How long have you lived with Dave Burney ? A. I don’t know. Q. That was your mamma who was killed? Ans.: Yes. Q. Do you know who your father is? Ans.: No.” This evidence is mainly negative and has little, if any, probative force. "We see in it no prejudicial or reversible error.
*611The defendant contends that all of this evidence was prejudicial and was incompetent, reflective of defendant’s character under the principle laid down in S. v. Bryant, 189 N. C., 112, and S. v. Shinn, 209 N. C., 22. The Bryant case was decided on the ground that it impinged C. S., 564. At p. 115, it is said: “If we treat the remarks made by the presiding judge to the witnesses, Loudermilk and Henson, as harmless and inadvertences, we are still confronted with the expression, ‘This witness has the weakest voice or the shortest memory of any witness I ever saw.’ —language which was clearly susceptible of any construction that the testimony of the witness was at least questioned by the court, if not unworthy of credit. The fact that exception was not entered at the time the remark was uttered is immaterial. The statute is mandatory, and all expressions of opinion by the judge during the trial, in like manner with the admission of evidence made incompetent by statute, may be excepted to after the verdict. Broom v. Broom, 130 N. C., 562.”
In the Shinn case is the following (at pp. 23-4) : “S. J. Critz, who had testified as a witness for the defendant, on his cross-examinatioii by the solicitor for the State, testified that he knew the general reputation of the witness, Luther Mesimer, and that it was ‘pretty good.’ He was then asked the following questions by the solicitor for the State: ‘Q. How many times has Luther Mesimer been up in court ? Ans.: Two or three times. Q. In the last six years, hasn’t he been involved in affrays with deadly weapons at least half a dozen times, and isn’t that his reputation? Ans.: I don’t know how many times — several times. Q. Didn’t he serve 8 months sentence for an assault with a deadly weapon, to wit: a knife?. Ans.: Yes, sir.’ The defendant’s objections to these questions and the answers thereto, all made in apt time, were overruled, and the defendant excepted.” The Court granted a new trial, basing its decision on S. v. Holly, 155 N. C., 485. In that case, at p. 490: “Dr. Bell, a witness for the State, testified upon cross-examination that the general character of the defendant was good. Upon the re-direct examination the witness was asked by the State if he had not heard that the prisoner had been accused of killing his wife. The witness answered ‘Not until after the present charge was brought.’ To this question and answer the defendant objected and excepted.” At p. 492-3, speaking to the subject, it is said: “If one collateral question of this character can be raised and tried, the same rule would permit a hundred others. The authorities in this State are numerous and uniform that it is error to allow such questions on the cross-examination of a witness as to character. In Barton v. Morphes, 13 N. C., 520, it was held inadmissible to ask ‘if he had not heard Morton accused of stealing a penknife’; in Luther v. Skeen, 53 N. C., 357, that ‘there was a current report in the neighborhood that plaintiff had sworn to lies while living *612in Randolph’; in S. v. Bullard, 100 N. C., 487, 'Do you not know that it was extensively talked about and said that the defendant practiced a fraud upon the firm of Worth & Worth?’; in Marcom v. Adams, 122 N. C., 222, 'Have you not heard that defendant had committed forgery ?’, 'Do you not know that the defendant had been indicted for forgery ?’; and in Coxe v. Singleton, 139 N. C., 362, 'Have you not heard that the defendant committed rape on a Negro girl?’, 'Have you not heard he padded his pay-roll at the mill ?’ ” (At p. 494) : “That the evidence was prejudicial cannot be doubted. The prisoner was charged with murdering, by poison, a member of his household, and the evidence was circumstantial. It was calculated to excite feeling against him in the minds of the most intelligent and upright jurors to know that he had been charged with killing his wife.”
The evidence in the present case, which was objected to, tended to show motive. It gave the setting. Defendant was head of the household — a tenant with a large force to work the crops. The evidence indicated that he attempted to control Orphie Kinsey, who had left home, and her mother, Mordie Kinsey, the deceased. The defendant practically admitted all the testimony objected to. We cannot hold it prejudicial or reversible.
The defendant contends that the court in its charge did not present for the jury’s consideration, manslaughter. The court below gave an accurate charge as to burden of proof, reasonable doubt, malice, premeditation and deliberation; what constituted murder in the first degree, the second degree, and stated fully the evidence and law applicable to the facts on which aspect the jury could return a verdict of not guilty. The evidence and contentions were fairly set forth on both sides of the controversy. The court below charged the jury: “Now, the court instructs you, gentlemen, that under the bill of indictment, and under the evidence offered in support of the bill of indictment, the jury can render one of three verdicts, to wit: guilty of murder in the first degree; guilty of murder in the second degree; or not guilty. There is no evidence to warrant the court in submitting to the jury the question of manslaughter!” From a careful review of the evidence which is in the record, without repeating same, we cannot see any element of manslaughter. The facts in this case are distinguishable from the cases of S. v. Kennedy, 169 N. C., 288, and S. v. Robinson, 188 N. C., 784, cited by defendant.
In 4 Warren, Homicides (1938), p. 447, is the following: “Where there is no evidence of passion and where one of two theories only can be accepted by the jury, either that of murder or self-defense, the defendant is not entitled to an instruction on manslaughter,” etc. S. v. *613Byers, 100 N. C., 512; S. v. McKinney, 111 N. C., 683; S. v. Johnson, 172 N. C., 920.
In S. v. McKay, 150 N. C., 813 (815), it is written: “The court further instructed the jury that they should return a verdict of murder in the first degree, murder in the second degree, or not guilty. There was no evidence in the case to reduce the crime to manslaughter, and therefore it would have been improper for the judge to have submitted to the jury a view of the case unsupported by any testimony whatever. S. v. Hicks, 125 N. C., 636; S. v. White, 138 N. C., 704.” S. v. Dixon, ante, 438.
The following exception and assignment of error made by defendant cannot he sustained: “It is largely a question of fact for you gentlemen. If you reject and refuse to accept, to adopt the defendant’s theory of the case, and upon all of the evidence in the case you should be satisfied upon the evidence beyond a reasonable doubt that he did shoot the deceased, mistaking her for Orphie Kinsey; that he intended to shoot Orphie Kinsey and to kill her, and if you find that he did it with malice aforethought and with premeditation and deliberation, then the court instructs you that as a matter of law he would be guilty of murder in the first degree, because under the law of this State, where a person with malice aforethought and with premeditation and deliberation intends to kill some particular person, hut through mistake kills another, he is just as guilty as if he had killed the person he intended to kill.”
In "Wharton on Homicide (3rd ed.), part sec. 359, p. 574, is the following, which is well settled law in this jurisdiction: “The rule is nearly, if not quite, universal that one who kills another, mistaking him for a third person whom he intended to kill, is guilty or innocent of the offense charged the same as if the fatal act had killed the person intended to be killed.”
In S. v. Sheffield, 206 N. C., 374 (382), speaking to the subject, is the following: “In Wharton’s Criminal Law, 12th ed., Vol. 1, part sec. 442, pp. 677-678, we find: ‘Where A. aims at B. with malicious intent to kill B., but by the same blow unintentionally strikes and kills O., this has been held by authorities of the highest rank to be murder.’ S. v. Benton, 19 N. C., 196; S. v. Fulkerson, 61 N. C., 233; S. v. Cole, 132 N. C., 1069.”
The court also charged the jury correctly in regard to defendant’s testimony in reference to thinking he was shooting at Clyde Morgan, who had made threats against him.
The court charged the jury as follows: “Murder in the first degree is the unlawful killing of a human being with malice aforethought and with premeditation and deliberation. Premeditation means to think about beforehand for some length of time, however short. Deliberation *614means to think about, to revolve over in one’s mind and weigh. 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, nor how late. And pursuant to said fixed design kills said person; this would be a killing with premeditation and deliberation. And when done with malice would constitute murder in the first degree. A fixed purpose to kill means preceding the act of killing, although the length of time between the time it is formed and carried into effect is immaterial.” Defendant excepted and assigned error, which cannot be sustained. S. v. Bowser, 214 N. C., 249 (253).
In S. v. Dowden, 118 N. C., 1145 (1153), it is said: “If the prisoner weighed the purpose of killing long enough to form a fixed design to kill, and at a subsequent time, no matter how soon or how remote, put it into execution, there was sufficient premeditation and deliberation to warrant the jury in finding him guilty of murder in the first degree. S. v. Thomas, ante, 181; S. v. Norwood, 115 N. C., 790; S. v. Covington, 117 N. C., 834; S. v. McCormac, 116 N. C., 1033. This Court has not followed the intimations of some of the courts of other states that, in order to constitute deliberation, there must be evidence of a definite design formed on some occasion, previous to the meeting at which the killing was done, and cherished up to and at the time of putting it into execution. The court properly told the jury that where the intent to kill was formed simultaneously with the act of killing the homicide was not murder in the first degree. This was but another mode of expressing the rule that there must be a preconceived and definite purpose to kill, the question of the time that elapses between the determination to kill and the killing being immaterial.” S. v. Hawkins, 214 N. C., 326 (334).
From the entire record we can find no prejudicial or reversible error. The defendant drinking and maddened by the troubles, or fancied troubles, with Orphie Kinsey and her mother, who were living at his home — Orphie having left his home and come back — purchased No. 4 shells for his gun the evening of the homicide and sent the gun to the tobacco barn loaded. Defendant enticed Orphie and her mother to go to the barn; near the barn defendant and Orphie got into a fight in which he nearly denuded her but she escaped. The mother retreated towards the house and while in the yard defendant shot her as she crouched on the ground. The shot that hit her and from which she died was No. 4. The whole record discloses a “jungle” situation— liquor, women and the sequel murder.
In the judgment of the court below, there is
No error.