The alleged crime was committed in Alamance County, N. C. The court below ordered a special venire from Orange County, N. C., and defendants were tried and convicted by a jury of Orange County.
The first question involved, as presented by defendants: “(a) The judge’s failure to charge as to the presumption of innocence; (b) to define the burden of proof and place it upon the State; (c) to give and explain the rule as to the credibility of the testimony of an accomplice; (d) and to instruct that failure to take the stand raises no presumption, and is not to be taken against the defendants.”
The defendants were tried under the following statute in this State — • N. 0. Code, 1935 (Michie), sec. 4200: “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree and shall be punished with imprisonment of not less than two nor more than thirty years in the State Prison.” The court below read this section to the jury and fully charged the jury as to its meaning. A homicide com*645mitted in tbe perpetration of robbery is murder in tbe first degree. S. v. Lane, 166 N. C., 333; S. v. Donnell, 202 N. C., 782; S. v. Glover, 208 N. C., 68.
In tbe charge is tbe following: “Now, gentlemen of tbe jury, tbe prisoners in tbis case, as are tbe defendants in any and every criminal case tried in our courts, are presumed to be innocent until tbeir guilt bas been established, and in order to establish tbe guilt, tbe burden is upon tbe State to satisfy tbe jury from all tbe evidence, beyond a reasonable doubt, that they are guilty. Seasonable doubt is a legal term and bas a meaning. Tbe law does not say that tbe defendant bas to be convicted beyond a doubt. That does not mean a conjectural or fictitious doubt. It does not mean a doubt founded upon something that you might imagine, but it means a doubt founded upon some substantial reason growing-out of tbe evidence itself which you have beard, so in order to convict these men or any of them, it will be necessary for you to be satisfied from all tbe evidence beyond a reasonable doubt that they are guilty.”
Tbe defendants rely on S. v. Hardy, 189 N. C., 799 (805). We do not think that tbeir position can be sustained. In S. v. Jordan, ante, 356 (365-6), is tbe following: “An examination of tbe numerous propositions as to which tbe trial judge must give instruction, without special request, shows that tbe duty to so instruct bas arisen in two ways : First, through tbe operation .of C. S., 564, requiring a statement of tbe evidence and tbe application of tbe law thereto; and, second, through precedent establishing tbe duty because of its substantial importance to. tbe rights of tbe defendant on trial. As to tbe proposition last stated, we find no precedent other than S. v. Hardy, supra, if it be a precedent; as to tbe first — and tbe defendant claims under tbe statute — it is difficult to see bow tbe duty of such an instruction can be brought within tbe requirements of a statute which simply says that tbe trial judge 'shall state in a plain and correct manner tbe evidence given in tbe ease and declare and explain tbe law arising thereon.’ A reference to tbe record and tbe briefs in tbe Hardy case, supra, discloses that tbe omission to instruct tbe jury that the failure of defendant to go on tbe stand was not to be taken to bis prejudice is not brought up by tbe two exceptions taken to tbe judge’s charge, nor was it adverted to in tbe briefs, and it was not, therefore, before tbe Court. It may be treated as a dictum. Treating tbe question raised, therefore, as a matter of first impression, it is debatable whether tbe judge does not do tbe defendant a disfavor by emphasizing tbe failure of tbe defendant to go upon tbe stand and, thereby, deepening an impression which is perhaps hardly ever removed by an instruction which requires a sort of mechanical control of thinking in tbe face of a strong natural inference. S. v. Bynum, supra (175 N. C., 777); S. v. Spivey, supra (198 N. C., 655). Upon these considerations, we think *646tbe matter bad best be left to tbe sound discretion of tbe defending attorney whether be shall forego tbe instruction or specially ask for it.”
In S. v. Ashburn, 181 N. C., 717 (727), “Tbe conviction of defendant was almost entirely on tbe unsupported testimony of Essie Hardy — from tbe entire record shown to be an accomplice.” At p. 728 it is written: “In S. v. Miller, 97 N. C., 487, Davis, J., said: ‘It has been repeatedly laid down that a conviction on tbe testimony of an accomplice uncorroborated is legal, Roscoe’s Criminal Evidence, 121; and this has been well settled as tbe law of this State, certainly since tbe cases of S. v. Haney, 19 N. C., 390; S. v. Hardin, ibid., 407; and S. v. Holland, 83 N. C., 624. It is, however, almost tbe universal practice of tbe judges to instruct juries that they should be cautious in convicting upon tbe uncorroborated testimony of an accomplice, and Gaston, J., in S. v. Haney, supra, says: ‘The judge may caution them against reposing hasty confidence in tbe testimony of an accomplice. . . . Long usage, sanctioned by deliberate judicial approbation, has given to this ordinary caution a precision which makes it approach a rule of law.’ If tbe unsupported testimony of tbe accomplice produce undoubting belief of tbe prisoner’s guilt, tbe jury should convict.’ S. v. Register, 133 N. C., 746; S. v. Shaft, 166 N. C., 407. Tbe court below charged tbe law fully and cautioned tbe jury, ‘You may convict on the unsupported testimony of an accomplice, but "¿hat it is dangerous and unsafe to do so.” ‘ ‘The charge was all, and perhaps more, than tbe defendant was entitled to.’ ” Tbe matter was in tbe sound discretion of tbe court below. There was evidence to tbe effect that tbe accomplice’s testimony was corroborated in every respect.
In S. v. Herring, 201 N. C., 543 (551), is tbe following: “Tbe courts below ordinarily in tbe charge to tbe jury apply tbe ‘Presumption of innocence’ in tbe interest of life and liberty, and enlarge on ‘reasonable doubt,’ ‘fully satisfied’ or ‘satisfied to a moral certainty.’ S. v. Sigmon, 190 N. C., 627-8; S. v. Tucker, 190 N. C., 709; S. v. Walker, 193 N. C., at p. 491. When instructions are prayed as to ‘presumption of innocence’ and to enlarge on ‘reasonable doubt’ it is in tbe sound discretion of tbe court below to grant tbe prayer. Tbe court below told tbe jury ‘my duty is to instruct you that it is your duty to not repose hasty confidence in tbe testimony of Chevis Herring. You must scrutinize tbe testimony of Chevis Herring carefully and cautiously,’ etc. Tbe court could have instructed tbe jury that tbe uncorroborated testimony of an accomplice, if believed by tbe jury beyond a reasonable doubt, is sufficient to convict, but tbe court below rightly gave tbe caution. This is in tbe sound discretion of tbe court. S. v. Ashburn, 187 N. C., at p. 728.”
*647From tbe well settled authorities in this State, defendants’ contentions cannot be sustained on any of tbeir objections on this aspect.
The second question involved, as presented by defendants: “The judge’s charge that it was unnecessary to find any previous purpose or plan in order to convict all of the defendants of first degree murder where the homicide was allegedly committed by one of them.”
The court below charged on this aspect: “Now, gentlemen of the jury, I charge you that if you find from all the evidence, and beyond a reasonable doubt that these three defendants, or any of them, killed Sheriff Robertson by perpetrating or attempting to perpetrate robbery, that would make all three of them guilty, that is, if one actually did the shooting and the others were participating in the act of robbery. I charge you, gentlemen, that the law is this: When two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. If you find that one of this party was committing this robbery and any of the other defendants were there present aiding and abetting and encouraging, then it would be immaterial which one actually fired the fatal shot. The man who was there aiding and abetting and participating in the robbery would be equally guilty with the man who fired the shot. ... I charge you also that it makes no difference whether they intended to shoot the officer when they went there or not; whether it was the plan to shoot the officers is immaterial. Even though you find that they had no previous purpose and design and plan, still if they were there and perpetrated the robbery and the officer was killed in the perpetration or attempted perpetration of the robbery, that would make them all guilty regardless of who fired the shot and would make them all equally guilty and make them guilty of murder in the first degree, unless as I say you find from the evidence that they were in such drunken condition they didn’t know and understand and realize what they were doing.”
In S. v. Cloninger, 149 N. C., 567 (573), is the following: “John Cloninger and Charles Costner were aiders and abettors. There is abundant evidence to sustain a conviction where the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection. Presence alone may be regarded as encouraging. S. v. Jarrell, 141 N. C., 725. To like effect is S. v. Finley, 118 N. C., 1161.”
In S. v. Bell, 205 N. C., 225 (226-7), speaking to the subject, we find: “The ease was tried upon the theory that if the defendants conspired to burglarize or to rob the home of George Dryman and a murder were committed by any one of the conspirators in the attempted perpetration of the burglary or robbery, each and all of the defendants would be guilty of the murder. This is a correct proposition of law. S. v. Don*648nell, 202 N. C., 782, 164 S. E., 362; S. v. Miller, 197 N. C., 445, 149 S. E., 590. It is provided by C. S., 4200, that a murder ‘which shall be committed in the perpetration or attempt to perpetrate any . . . robbery, burglary or other felony, shall be deemed to be murder in the first degree.’ ”
In S. v. Ray, 212 N. C., 725 (731), it is stated: “The principle is well established that one who, being present, gives aid and comfort, counsel or encouragement to another, in the commission of a crime, is guilty as a principal. S. v. Cloninger, 149 N. C., 567; S. v. Hart, 186 N. C., 582; S. v. Dail, 191 N. C., 234; S. v. Cosnell, 208 N. C., 401.”
In S. v. Epps, 213 N. C., 709 (713), it is said: “In S. v. Davenport, 156 N. C., 596 (614), is the following: ‘A person aids and abets when he has “that kind of connection with the commission of a crime which, at common law, rendered the person guilty as a principal in the second degree. It consisted in being present at the time and place, and in doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission.” Black’s Dict., p. 56, citing Blackstone, 34. An abettor is one who gives “aid and comfort,” or who either commands, advises, instigates, or encourages another to commit a crime — a person who, by being present, by words or conduct, assists or incites another to commit the criminal act (Black’s Dict., p. 6) ; or one “who so far participates in the commission of the offense as to be present for the purpose of assisting, if necessary, in such case he is liable as a principal,” ’ ” citing numerous authorities.
Defendants’ contentions cannot be sustained on this aspect.
The third question involved, as presented by defendants : “The judge’s charge that defendants must affirmatively assume the burden of proving drunkenness and even if they did so to the satisfaction of the jury, proving lack of mental capacity to understand what they were doing, this would still make defendants guilty of murder in the second degree.
In S. v. Cloninger, supra, at p. 572, it is said: “‘Transitory homicidal plea’ as to Will Cloninger. The presumption is that he was sane. The burden was on him to show the contrary. S. v. Potts, 100 N. C., 465. Will Cloninger testified: ‘I guess I was unconscious. ... I saw Mauney coming towards me, he said he was going to kill me, and I thought he was. I then struck him.’ His Honor charged: ‘If the person at the time of the homicidal act was in a state of mind to comprehend his relation to others, or, knowing the criminal character of the act, was conscious that he was doing wrong, he was responsible; otherwise he was not, and such would be your verdict.’ This charge follows S. v. Haywood, 61 N. C., 376, which has been approved since on this point. S. v. Potts, 100 N. C., 465; S. v. Davis, 109 N. C., 784; S. v. Branner, ante, 559, and in other cases.”
*649It is a well settled rule that “the burden rests upon the defendant to prove the defense of drunkenness to the satisfaction of the jury to mitigate the offense.” S. v. Hammonds, ante, 67 (78). And the charge that if the jury found that these defendants were so drunk that they did not know or realize what they were doing, they would not be guilty of murder in the first degree but would be guilty of murder in the second degree has been approved in effect by this Court in the case of S. v. Williams, 189 N. C., 616-620. Here the Court approved the following-charge in this regard: “ ‘Drunkenness under the law is no excuse for crime and does not relieve the person of guilt for crime entirely. But in the case of murder, if a person is so intoxicated and rendered so insensible and so irrational by intoxication of any kind, or is naturally so weak-minded from natural causes that he cannot form an intent and cannot premeditate and deliberate, then it reduces the offense from murder in the first degree to murder in the second degree.’ ”
The court below charged the jury: “The law presumes, gentlemen, that every man is sane and when a man comes into court and sets up a plea of drunkenness in order to excuse himself from some violation of the law, he must satisfy the jury from the evidence that he is not responsible by reason of the fact that he did not have mental capacity sufficient at the time to thoroughly know and understand what he was about and what he was doing.”
Defendants object to the charge of the court with regard to the degree of proof necessary to be offered by them as to their mental capacity, to reduce the crime from murder in the first degree to murder in the second degree, and argues under these exceptions that the judge should have submitted to the jury the issue of manslaughter; and complains further that the court did not properly define murder in the first degree and murder in the second degree. The court defined murder in the first degree as follows: “Murder in the first degree not only is the unlawful, felonious, and malicious slaying of another, but a killing that has been done with premeditation and deliberation.” And defined murder in the second degree as: “The unlawful and malicious killing of a human being. . . . The killing with malice, nothing else appearing, is murder in the second degree.” The court further charged the jury as to murder in the second degree as follows: “. . . A killing with a deadly weapon, nothing else appearing, is at least murder in the second degree. It is not necessary to actually prove malice, if one kills another with a deadly weapon . . . the fact that a deadly weapon was used would make that murder in the second degree at least.” And with regard to that portion of the charge complained of, “Unless you find from the evidence that the killing was entirely without malice,” attention is called to that portion of the charge: “In order for a defendant to *650reduce the crime from murder in the second degree, in order to sbow justifiable homicide, the burden would be upon the defendant to satisfy the jury, not by the greater weight of the evidence, nor beyond a reasonable doubt, but the burden would be upon the defendant to satisfy the jury that the killing was without malice before it could be reduced to any lower degree than murder in the second degree.”
"We think this charge covers the contention complained of by defendants. The court did not submit to the jury the issue of manslaughter, because there is no evidence in the record which would justify the submission of such an issue. The matter complained of is not prejudicial to the defendants.
Defendants’ contentions cannot be sustained under this aspect.
The fourth question involved, as presented by defendants: “This contention relates to the remarks of the solicitor in his argument to the jury to the effect that certain of the State’s evidence was ‘uncontra-dicted.’ ” The court on each occasion warned the jury not to consider such statements and ordered the solicitor in no uncertain terms not to continue such argument. Our Court has held that such an argument to the jury is free from error when the court has properly warned the jury not to consider the same. S. v. Weddington, 103 N. C., 364; S. v. Hooker, 145 N. C., 581; S. v. Winner, 153 N. C., 603; S. v. Davenport, 156 N. C., 596. The language complained of in the case of S. v. Hooker, supra, at p. 584, almost the identical language was objected to. In this case the Court said: “The last exception is to the solicitor’s comment that 'none of the evidence as testified to by the State’s witnesses has been contradicted and no one has said that it was not true.’ This could not be taken as a criticism upon the failure of the defendant to put himself upon the stand.”
Defendants’ contentions cannot be sustained under this aspect.
The fifth question involved as presented by defendants: “The judge’s numerous errors in permitting testimony impeaching the character of the defendants, when defendants had neither taken the stand nor directly placed their characters in issue.” All these objections relate to questions and answers concerning Roy Huffman, one of the participants in the robbery and murder. Huffman was killed in the fight at the filling station when the officers arrived; he was not on' trial and evidence as to the fact that he had been a former convict cannot be taken advantage •of in the way of an objection by either of these defendants.
Other contentions are to the court’s permitting the solicitor for the •State to ask the witness if Roy Kelly had made a statement to him as to whether or not he was an escaped prisoner, and permitting the witness to also state that Roy Kelly had informed him at this time that he had •escaped from prison with Roy Huffman. Both these statements were *651made to tbe witness T. I. Davis, tbe officer to wbom Eoy Kelly made an oral confession, and were made at tbe time of tbe confession. These declarations of tbe defendant made to tbe officer during tbe course of bis conversation witb bim and at tbe time of tbe confession were properly admitted.
In tbe case of S. v. Swink, 19 N. C., 9 (13), it was said: “It is undoubtedly law that in criminal as well as civil eases tbe whole of an admission or declaration made by a party is to be taken together,” etc.
In tbe case of S. v. Edwards, 211 N. C., 555 (556), tbe Court, also speaking to this subject, says: “Tbe defendant was entitled to have tbe confession considered as given in its entirety, witb whatever views or theories it afforded,” citing authorities.
In Burnett v. People, 204 Ill., 208, 68 A. S. E., 206, 66 L. R. A., 304, tbe following instruction was held to be a correct statement of tbe law: “ ‘The court instructed tbe jury that where a confession of a prisoner charged witb a crime is offered in evidence, tbe whole of tbe confession so offered and testified to must be taken together, as (well as) that part which makes in favor of tbe accused, as that part which makes against bim, and if tbe part of tbe statement which is in favor of tbe defendant is not disproved by other testimony in tbe case and is not improbable or untrue, considered in connection witb all tbe other testimony of tbe case, then that part of tbe statement is entitled to as much consideration from tbe jury as tbe parts which make against tbe defendant.’ ”
Notwithstanding tbe above, evidence of a former prison record, an escape from prison of tbe defendant is competent in this case. He bad escaped from prison witb Huffman, one of tbe parties to tbe crime who was killed in its commission, all bis companions were ex-convicts and evidence that tbe defendant Kelly was an escaped prisoner and that be bad escaped witb Huffman, one of tbe perpetrators of tbe crime, is competent to show “quo animo, intent, design, or guilty knowledge, where such requirements are so connected as to throw light upon tbe question.” S. v. Godwin, ante, 49.
As said in S. v. Payne, 213 N. C., 719 (725): “We think tbe evidence of tbe occurrences in which tbe defendants made their escapes singular from tbe State Prison and subsequent evasions of arrest are competent as tending to show tbe state of mind of tbe defendants at tbe time of tbe killing of George Penn, at tbe end of a running gun battle in an attempt to escape arrest by bim. In their confession tbe defendants separately admit that they knew that an officer was pursuing them and that they beard tbe siren on bis automobile.”
We have stated tbe facts and law at some length, as tbe matter is of such grave importance. After thorough consideration of tbe record and *652able briefs of the Attorney-General and counsel for defendants, we see no prejudicial or reversible error in the record.
The court below tried the case with care and ability; applying the law applicable to the facts, in accordance with the decisions of this Court. The court quoted the evidence and set forth the contentions of the State and of defendants accurately and without bias.
By competent evidence introduced on the trial, it was shown that the defendants and Roy Huffman (who was killed) attempted to rob the Sprinkle Service Station of a safe and committed the robbery of some oil and anti-freeze. They were all ex-convicts and all aided and abetted the robbery and attempted robbery. The plan was agreed upon by all. Two automobiles were used for the purpose — a Pontiac and a Ford— one of which had the seat loosened so that the safe which they were to take from the service station could be placed in it. The two automobiles were nearby to help and protect the robbers — one to haul the safe in and the other to watch and block the road if the officers or anyone pursued them. They had burglary tools and nitro-glycerine, which was known to all the participants. Some oil and anti-freeze were taken from the service station and placed in the cars in waiting. The robbery was a bold one, as the place was well lighted, in Burlington near the underpass. The defendants had broken the lock and gone into the station. They had weapons' — one a .45 automatic revolver, and the other a .32 Smith & Wesson pistol. As they were forcing the door open they were seen by a young man employed by a dairy who was on his way to work. He reported the matter to the sheriff of the county and the sheriff and two police officers went to the scene. When they arrived men were on the inside of the service station. One of the officers fired into the service station and shot and killed one of the men (Roy Huffman). The sheriff and one of the police officers (Yaughn) were killed in the gun-battle. Twelve loaded .45 shells that had not been fired were taken from the pocket of Roy Huffman, who was killed in the station. There were five empty shells from the .45 pistol in the service station and four .32 cartridges that had not been fired. Roy Kelly did not go into the service station, but was in waiting in one of the cars outside. Wade Hanford had two .32 Smith & Wesson pistols and Ralph Hanford had one of them on the night of the shooting. They and Huffman went into the service station. When Huffman was killed, Wade Hanford said he shot three times and came out of the service station with his hands up. Wade and Ralph Hanford went away from the station after the shooting and fled.
There were eight different bullet holes in the body of Sheriff Robertson. In Yaughn’s body, the police officer who was killed, there were two holes and one in his finger. There were eleven shots in all in the two officers.
*653All tbe defendants, wbo were ex-convicts, bad sweethearts or girl friends. Tbe evidence was to tbe effect that they bad all been drinking and staying in tourist cabins witb their sweethearts or girl friends tbe day before. They stayed at “Tbe Green Top Inn,” “Tbe Correct Time Inn,” “The Wagon Wheel,” etc. None of these parties were working. Tbe evidence shows that this robbery and killing was committed by men wbo bad criminal records. It was a bold crime, in almost tbe heart of tbe town, tbe men “armed to tbe teeth” and with burglary tools. Tbe .sheriff and Officer Yaugbn were killed on tbe battlefield of duty and law enforcement. Tbe evidence is plenary in every respect that tbe •defendants were guilty of tbe killing of these two officers. Tbe places they habitually frequented witb their sweethearts and girl friends indicate were places of vice and dives which usually are breeding places for ■crime. They bad all been drinking. Tbe evidence shows that tbe perpetrators were criminals of desperate character, moved and instigated by tbe devil witb hearts fatally bent on mischief.
For tbe reasons given, we find in tbe record no prejudicial or reversible error.
No error.