At the close of the State’s evidence and at the close of all the evidence, the defendant in the court below made motions for judgment to dismiss or nonsuit. C. S., 4643. This motion was addressed solely to the charge of murder in the first degree “or by any kind of willful, deliberate and premeditated killing.” C. S., 4200: The record discloses “at the close of the evidence the defendant admits the killing.”
*75In S. v. Lawrence, 196 N. C., 562 (564) : “On motion to dismiss or judgment of nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe State, and it is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom. ‘An exception to a motion to dismiss in. a criminal action taken after tbe close of tbe State’s evidence, and renewed by defendant after tbe introduction of bis own evidence does not confine tbe appeal to tbe State’s evidence alone, and a conviction will be sustained under tbe second exception if there is any evidence on tbe whole record of tbe defendant’s guilt.’ S. v. Earp, ante, at p. 166; S. v. Carlson, 171 N. C., 818; S. v. Sigmon, 190 N. C., 684. Tbe evidence favorable alone to tbe State is considered — defendant’s evidence is discarded. S. v. Utley, 126 N. C., 997. Tbe competency, admissibility and sufficiency of evidence is for tbe court to determine, tbe weight, effect and credibility is for tbe jury. S. v. Utley, supra; S. v. Blackwelder, 182 N. C., 899.”
Tbe first question to be decided on this appeal: Did tbe court below commit error in overruling tbe defendant’s motion to dismiss as to murder in the first degree? We think not. S. v. Daniel, 139 N. C., 549.
In S. v. Steele, 190 N. C., 506 (511-12), Varser, J., for tbe court said: “Tbe requirement, in first degree murder, in order to constitute ‘deliberation and .premeditation’ does not require any fixed time before band. These mental processes must be prior to tbe killing, not simultaneous, ‘but a moment of thought may be sufficient to form a fixed design to kill.’ S. v. Norwood, 115 N. C., 789; S. v. McCormac, 116 N. C., 1033; S. v. Covington, 117 N. C., 834; S. v. Dowden, 118 N. C., 1145, 1153; S. v. Thomas, 118 N. C., 1113, 1123; S. v. Exum, 138 N. C., 599.” S. v. Buffkin, 209 N. C., 117 (124); S. v. Bowser, 214 N. C., 249 (253-4); S. v. Burney, 215 N. C., 598.
In North Carolina there is ample authority for tbe statement that tbe surrounding circumstances and lack of provocation or sudden passion may be taken into consideration by tbe jury in determining whether tbe killing was with premeditation and deliberation. S. v. McCormac, supra, 1033; S. v. Roberson, 150 N. C., 837; S. v. Walker, 173 N. C., 780; S. v. Roderick, 175 N. C., 722; S. v. Evans, 198 N. C., 82.
Before tbe killing tbe deceased and tbe defendant seemed to have been friendly. Tbe deceased, with James Hammonds and Harvard Chavis, was fixing tbe tire to Brumbies’ Ford roadster, on account of its going down. Tbe defendant, Brieey Hammonds, when Chavis came up, was standing there and bad a conversation with him. He said to Chavis, “You better fix tbe tire.” The deceased took bis coat off and walked around in front of tbe car and threw tbe coat on tbe seat. *76Chavis saw his badge and pistol. His badge was on his vest and his pistol was in his holster on his right hip. "When Chavis saw the pistol and badge he thought it would be all right to help with the tire. Chavis testified, in part: “Me and James were on our knees and this man (deceased) .he squatted down, kinder short man like. At that time Bricey was standing kinder behind us, behind the guard. While we were kneeling down there and inserted the screw driver to get this other tool down here for me to push it down, I heard a pop and felt the heat side of my head and it kinder deafened me and I jumped up and looked around, Bricey had a pistol in his hand, I seen some smoke around close up and he had a pistol in his hand, and his father he looked at the man first and when he hollered, he said, ‘Bricey, you have shot that man,’ and I happened to look over there, and there was the man, he had fell on his face kinder against the wheel, bottom of the wheel, the inside rim, he fell with his face kinder down there and the blood was gushing out of his mouth and nose. ... I grabbed him (Bricey Hammonds) and held him for his father to come back and take the pistol away from him, so his father came back and wrung the pistol out of his hand and when he wrung the pistol out of his hand I turned him a loose. When his father got the pistol he said, ‘Bricey, good Lord, what did you mean by shooting that man-/ he told him he hadn't done nothing, to keep his mouth shut; that was what Bricey said to him.” The defendant had slipped the pistol from-the holster which was on deceased’s right hip, while he was fixing the tire, and shot him in the back of the head.
We think under the authorities cited, this was plenary evidence to be submitted to the jury on malice, premeditation and deliberation. It is well settled that proof of a motive for the homicide is not necessary where the evidence shows an intentional killing with deliberation and premeditation. S. v. Buffkin, supra, 125.
On the attitude of premeditation and deliberation, the action of defendant speaks louder than words. There was enough evidence to be submitted to the jury that he did the awful deed cooly, with malice, premeditation and deliberation. He saw the pistol in the holster on deceased’s hip, he thought out and resolved in his mind and planned to get the revolver slyly without the deceased’s knowledge. After getting-the pistol out of the holster, standing behind him, he fired the pistol into the back of deceased’s head and killed him.
Craft v. State, 3 Kansas, 447, relied on by defendant, is not in point. It says: “ ‘. . . nothing in the manner of the killing ... to indicate that there has been premeditation.’ ” In this case we have the manner of killing, slyly slipping the pistol from the holster on deceased’s hip so that he would not know it, and shooting him from behind in the head. After the fatal act defendant told his father “He *77hadn’t done nothing, to keep his month shut.” Gain, the first murderer, said: “I know not; am I my brother’s keeper.” The evidence evinces that defendant was prompted by an evil heart, desperately wicked and fatally bent upon mischief.
The second question to be decided on this appeal: Was there error in the charge of the court below as regards drunkenness or intoxication as a defense to the killing? We think not.
The defendant contended he was drunk or intoxicated to such an extent that he could not form any intent to commit the criminal act. The court charges on this aspect, in part: “Drunkenness is no excuse for crime and has often been said, but where a specific intent — and I charge you a specific intent is essential to convict of the crime of murder in the first degree — is essential to the criminality of the act, or there must be premeditation or deliberation or some mental process of the kind, in order to determine the degree of the crime, it is proper to consider the prisoner’s mental condition at the time of the alleged offense, so committed; if he was not able for any reason to think out beforehand what he intended to do, and to weigh it and understand the nature and consequence of his act, he could not be held to the same measure of responsibility as one with better faculties and a clearer mind should be. . . . And a person who commits a crime while so. drunk as to be incapable of forming a deliberate and premeditated design to kill is not guilty of murder in the first degree. . . . Where a specific intent is essential to constitute crime, the fact of intoxication may negative its existence. Accordingly, since the statute dividing the crime of murder into two degrees and in cases where it becomes necessary, in order to convict an offender of murder in the first degree, to establish that the killing was deliberate and premeditated, these terms contain, as an essential element of the crime of murder, a purpose to kill previously formed after weighing the matter, a mental process, embodying a specific, definite intent, and if it is shown that an offender, charged with such crime, is so drunk that he is utterly unable to form or entertain this essential purpose, he should not be convicted of the higher offense of murder in the first degree. . . . If a person when he is cold sober, forms a deliberate intent to kill a person and after he has formed that intent to kill a person, he then becomes intoxicated and while intoxicated kills a person, the fact that he was intoxicated would not reduce murder in the first degree to murder in the second degree. You understand that, gentlemen? To make such defense available, the evidence must show that at the time of the killing, the prisoner’s mind and reason was so completely and utterly incapable of forming a deliberate and premeditated purpose to kill. As the doctrine is one that is dangerous in its application, it is allowed only in very clear cases, *78and where the evidence shows that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants to whatever extent in order to carry out the design will not avail as a defense.” Taking the charge as a whole and not disjointedly, we see no error in the charge.
In S. v. Kale, 124 N. C., 816 (819), it is written: “If one voluntarily becomes drunk and kills, without justification, he is guilty of murder. S. v. Wilson, 104 N. C., 868. The test of accountability is the ability of the accused to distinguish right from wrong and that in doing a criminal act he is doing wrong. When killing with a deadly weapon is admitted or proved the law implies malice and the burden of showing the absence of malice is upon the defendant. Drunkenness at the time the crime is committed, nothing else appearing, does not repel malice nor lower the grade of the crime. The law recognizes the dethronement of reason, as an insanity for instance, as an excuse. S. v. Potts, 100 N. C., 457. 'Voluntary drunkenness is never an excuse for the commission of a crime.’ S. v. Keath, 83 N. C., 626. If one charged with murder has premeditated and deliberately formed the intention to kill and did kill the deceased, when drunk, the offense is not reduced to murder in the second degree. S. v. McDaniel, 115 N. C., 807. Of course the killing and its manner, the intent, intoxication, how it comes about and for what purpose drunkenness takes place, and the like, are questions for the jury under the court’s instructions as to the law applicable thereto.”
The charge of the court below seems to be taken from S. v. Murphy, 157 N. C., 614 (617, 618, 619). S. v. Alston, 210 N. C., 258; S. v. Edwards, 211 N. C., 555; S. v. Hawkins, 214 N. C., 326 (333); S. v. Adams, 214 N. C., 501 (505); S. v. Bracy, 215 N. C., 248.
The burden rests upon defendant to prove the defense of drunkenness to the satisfaction of the jury to mitigate the offense. S. v. Bracy, supra, 255, 257.
The defendant contends that the charge was erroneous as there was no evidence that the defendant had formed any intent to kill deceased before he got drunk. Taking the evidence and the charge as a whole, we see no prejudicial or reversible error. We do not think the charge, as a whole, impinged C. S., 564, and is not so conflicting that it could not be reconciled. In fact, it is favorable to defendant. In the very beginning of the charge of the court below is the following: “I instruct you, gentlemen of the jury, that you have the right under the evidence in this case, to render either one of several verdicts. You may find the defendant guilty of murder in the first degree, guilty of murder in the second degree, guilty of manslaughter, or you may find him not guilty, as you may find the facts to be from the evidence in the case. So your *79charge is to say by your verdict whether the prisoner is guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty. It is a matter solely for you to determine whether he is guilty of the felony and murder whereof he stands indicted and determine the grade or degree of guilt, if any you shall find, or to say by your verdict he is not guilty of either offense charged in the bill of indictment as you may find the evidence shall warrant.” The court went on and defined correctly murder in the first and second degrees and manslaughter, malice, intent, reasonable doubt. The law applicable to the facts was carefully given. The contention to the charge as regards testimony of interested persons is untenable. The court charged: “And if, from the testimony, or from it and the other facts and circumstances in the case, the jury believes such witnesses have sworn the truth, then they are entitled to as full credit as any other witness, and you should give that testimony as much weight as the testimony of a disinterested witness.”
From a careful reading and re-reading the charge of the court below, it seems as if the learned judge took unusual pains in trying the case following the law as laid down by this Court and applying the law applicable to the facts.
In the judgment we see no prejudicial or reversible error.
No error.