The defendant’s appeal challenges many features of the trial which resulted in his conviction of murder in the first degree and a sentence of death. All of the exceptions have been carefully considered. We discuss only those we think merit attention in a written opinion.
Exceptions were taken to the use in evidence of a diagram of the premises where the homicide occurred, drawn with reference to the main features of that happening, particularly the position of witnesses, actors in the scene, and objects mentioned in the testimony. The objection raised was upon the ground that the diagram was not made by the testifying witnesses and that the jury was not instructed at the time that it was used only to illustrate or explain the testimony. As to the latter contention, the record discloses that it was formally offered only 'for that purpose — a fact of which counsel seem to be inadvertent. As to the other *288contention, the correctness of the diagram was attested by the witnesses using it, and this we deem to be sufficient for its admission, and use as the record shows to have been done in the ease at bar. Tankard v. R. R., 117 N. C., 558, 23 S. E., 86; Arrowood v. R. R., 126 N. C., 629, 36 S. E., 151; S. v. Harrison, 145 N. C., 408, 59 S. E., 867; S. v. Rogers, 168 N. C., 112, 83 S. E., 161; S. v. White, 171 N. C., 785, 87 S. E., 984; S. v. Spencer, 176 N. C., 709, 97 S. E., 155; S. v. Kee, 186 N. C., 473, 119 S. E., 893; Walters v. State, 23 Ala. App., 434; People v. Shearer, 133 Cal., 154, 65 P., 295; People v. Schultz, 197 N. Y. S., 888.
Exception was made to the admission in evidence of the statement of. Carl Motley that the deceased had bled to death from the wound in the leg. Motley was a licensed embalmer, who prepared the body for burial shortly after death.
The court held that Motley was an expert embalmer. He testified, substantially, that while he was not a physician and had never studied medicine, he had studied the “blood track of the human body,” which was necessary to the profession of embalming. He described the condition of the body, stating that it was covered with blood; that the leg was broken “and the skin was holding it,” and that there was a lot of blood on it. He testified that the arteries were cut in two, and that there were no major arteries left there at all. He was then permitted to say that, in his opinion, the man had bled to death as the result of the wound in his leg. The statement was near the category of a shorthand statement of an observed fact.
There was expert medical testimony to the same effect; and Mrs. Price testified, without objection, that her husband had bled to death before defendant left, and that he was dead when put into the ear to be carried to Goldsboro.
The court may be justified in inferring that a physician, graduate of a reputable medical college, licensed, and for some time employed in practice, has the requisite amount of experience and is, therefore, qualified to give an opinion; and, ordinarily, where expert testimony is relied upon to show the cause of the death, men learned or skilled in the medical profession are called upon for an opinion. But we apprehend that the real test of the admissibility of such evidence, or rather the competency of the witness from whom it comes, does not rest upon the fact that he belongs to a certain profession to which opinion evidence of that character is necessarily confined, but upon a principle that must lie behind the competency of all opinion testimony — the fact that the witness has special experience in matters of the kind, and his conclusions may, therefore, be helpful to the less experienced jury.
The qualification of a witness to give an opinion as one skilled, or, as it is usually termed, an expert, depends on matters of fact and the ques*289tion is addressed to tbe trial judge, with opportunity to the objector to test the experience of the witness by appropriate examination. Regardless of the professional label, it is for the court to say whether the witness is qualified to testify as one skilled in the matter at issue, and his finding-will not be disturbed when there is evidence to support it, and the discretion has not been abused. S. v. Brewer, 202 N. C., 187, 162 S. E., 363, 81 A. L. R., 1424; Turner v. American Security & Tr. Co., 213 U. S., 257, 23 L. Ed., 788.
To what extent the experience of a professional embalmer, with a knowledge of the blood vessels of the human body and their functions, and with ocular evidence that they had been emptied of their life-sustaining content, might qualify him to testify that the deceased had bled to death through the severed arteries, we do not need to say. We are inclined to the opinion that the court might not infer such experience merely from the fact that he was an expert embalmer, but in this case we do not feel that it is necessary to pass upon that point.
We have the impression that there was never any serious controversy as to the manner in which Price came to his death, and are of opinion that upon the record, the pertinent exceptions do not disclose prejudicial or reversible error. S. v. Inscore, 219 N. C., 759.
The instructions to the jury embodied in the judge’s charge are assailed in two respects.
In the course of his charge, the judge — -with apparent inadvertence— instructed the jury as follows: “. . . Murder is the unlawful killing of a human being with malice aforethought. That is murder in the first degree.”
This is the approved definition of murder prior to the enactment of C. S., 4200, dividing murder into first and second degrees, and providing that murder committed with premeditation and deliberation, etc., shall be murder in the first degree and punished with death, and “all other murder” shall be murder in the second degree and punished by imprisonment in the State’s Prison.
The statute intended to select out of all murders denounced under the above definition those that were more heinous because committed with premeditation and deliberation, or in the perpetration or attempted perpetration of a felony, etc., as murder in the first degree, punishable with death, and leave other murders deemed less heinous as murder in the second degree, punished by imprisonment. S. v. Cole, 132 N. C., 1069, 1074, and 1075, 44 S. E., 391.
The defendant insists that the word “aforethought” used in this definition is not synonymous with “premeditated” and “deliberate,” which is essential to first degree murder, and that it merely means “intentional,” citing S. v. Cole, supra. As pointed out by the Attorney-General, “afore*290thought” is defined as “premeditated” (Century, Webster), and “premeditated” is defined as “deliberate.”
In S. v. Cole, supra, the Court, in sustaining the statutory form of indictment, C. S., 4614, has this to say, per Justice Connor: “Whatever difference of opinion may have existed in regard to construction of Laws 1893, chapter 85, before or at the time of the decision of Fuller's Case [S. v. Fuller, 114 N. C., 885], it is now conceded that by the statute, the crime of murder in the second degree is as at common law, which is defined to be 'when a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the King’s peace with malice aforethought, either express or implied.’ Blk. Com., star p. 195.”
It is clear, then, that the word “aforethought” cannot be held to import into the definition the element of premeditation or deliberation. Indeed, it is rather definitely indicated that it relates rather to the prior existence of the malice which motivates the murder than to a previously entertained purpose. Standing alone, it is inadequate to convey to the jury the necessity of finding premeditation and deliberation as an element of first degree murder.
The crime of murder in the first degree is distinguished by a mental process or psychological condition, none too easy of expression. S. v. Cole, supra, at pp. 1078, 1079. But where the content of words has been determined with more exactness by legal usage and stabilized by approved formula, they are to be understood and applied in this sense.
Subject to the reservation that there is no phase of the evidence which supports the theory of manslaughter, it was necessary that the jury have an understanding of the features which distinguish the three kinds of unlawful homicide: Manslaughter is the unlawful killing of another upon sudden passion, under legal provocation, without malice and without premeditation and deliberation; murder in the second degree is the unlawful killing of another with malice and without premeditation and deliberation, and is presumed from an intentional killing with a deadly weapon; murder in the first degree is the unlawful killing of another with malice and with premeditation and deliberation — or in the perpetration or attempt to perpetrate a felony.
The expression to which objection is made does not stand alone, and we feel that these distinctions were sufficiently made clear. The trial judge repeatedly instructed the jury that they could not find the defendant guilty of murder in the first degree without finding from the evidence, beyond a reasonable doubt, that the killing was done with premeditation and deliberation. This was accompanied with ample explanation and illustration, and the law was carefully applied to pertinent phases of the evidence, of which the record, unfortunately, is full. With due regard to the character and importance of this case, we feel that duty *291requires us tere, as in otter similar cases, to apply tte rule ttat tte charge must be examined contextually and viewed as a whole to determine whether it is so prejudicial as to be condemned for reversible error. Having done so, we do not find ttat in this particular it justifies reversal. S. v. Shepherd, 220 N. C., 377; Motor Co. v. Ins. Co., 220 N. C., 168; S. v. Cash, 219 N. C., 818, 15 S. E. (2d), 277; S. v. Moore, 197 N. C., 196, 197, 148 S. E., 29.
There was some evidence in the case tending to stow ttat tte defendant tad been drinking some time prior to tte homicide — none that he was drunk. But counsel stress the importance of defendant’s condition at the time, as tending to stow ttat by reason of drunkenness, he was incapable of forming or entertaining the deliberate purpose to kill. Specific objection is made because the jury was instructed that “intoxication cannot serve as an excuse for the offender” and that “intoxication, though voluntary, is to be considered by the jury in a prosecution for murder in the first degree, in which a premeditated design to cause death is essential, with reference to its effect upon the ability of the accused at the time to form and entertain such design, not because per se it either excuses or mitigates the crime, but because in connection .with other facts, an absence of malice or premeditation may appear”; and further, because the jury was instructed “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 murder in the first degree.”
The instructions gave to the defendant all to which he was entitled, and perhaps more, since it is doubtful whether the evidence was sufficient to raise the question at all. It has been said that while this defense requires no separate plea, nevertheless, in some way it should be brought to the attention of the court that the defendant relies upon it. S. v. Cureton, infra. Doubtless, as a matter of precaution it was presented to the jury by the court ex mero moiu.
"Without taking up these exceptions in detail, we think it sufficient to refer to the very full discussion on the subject in the recent case of S. v. Cureton, 218 N. C., 491, 11 S. E. (2d), 469, in which similar objections were made and resolved against the defendant. Upon all the challenged features, the charge in the instant case very closely follows the law as laid down in this case. From the copious citations of authority from this State contained in the cited case, the historical development of the law may be followed. It may be that the rules applicable to drunkenness as a defense against crime in some of their aspects reflect the public policy rather than philosophical refinement, but they were correctly applied in the case at bar.
Exception is made to the instruction given the jury with respect to the burden resting upon the defendant in seeking to mitigate the offense from *292murder in the second degree, a presumption of which arises out of intentional killing with a deadly weapon, to manslaughter. While we think the challenge to the instruction cannot be maintained upon principle, still, as we see it, there was no phase of the evidence available to the defendant upon which manslaughter might be predicated, and any instruction with regard to it was harmless. Apparently, the manslaughter view was presented as a matter of grace and not of necessity. At any rate, where the distinction was of moment, the court correctly charged that the presumption of malice and of murder in the second degree arises from intentional killing with a deadly weapon.
We do not mean to dismiss the objections presented to us as mere technicalities. That term is not infrequently applied to the honest and meticulous effort of the courts to apply the law, without judicial amendment, giving to the affected party its full benefit, even to the shade of a shadow. Where there is a doubt that this has been done, the vigilance of counsel makes for higher standards of trial. But our duty carries us beyond the mere detecting of isolated inaccuracies into a review of their possibilities or probable effect on the result. The defendant, we believe, has had a fair trial, without prejudicial error in the aspects covered by the exceptions.
The motion for judgment as of nonsuit was ju'operly overruled.
We find
No error.