dissenting: Unquestionably the evidence was sufficient to warrant the verdict of guilty of murder in the first degree. It appeared from the testimony that several hours before the homicide the defendant secured his shotgun and shells, and after waiting some time for the deceased to return to her home from work, approached within a few feet of the outhouse where she had gone and deliberately shot her through the heart, saying “You have talked your last word.” Then after reloading his gun and threatening a like fate to her husband, he left the scene, and later gave himself up. It was testified that he said afterwards he had no regrets and would do the same again, that “he had his reasons.” The deceased was a woman 34 years of age and a wife and the mother of five children.
The evidence as to the circumstances of the homicide was uncontra-dicted. The only defense interposed was insanity. It was contended the excessive use of liquor and headache remedies had rendered defendant mentally irresponsible. All the testimony offered by him. and the cross-examination of the State’s witnesses were pointed to that plea. Of the twenty-seven exceptions noted during the trial, all but one were in that connection. It was on the plea of insanity the contest was waged. In their brief counsel for defendant frankly admit the charge of the court on questions of law was free from error. The record, I think, shows that the defendant has had a fáir and impartial trial, before an able and painstaking judge and an intelligent jury. The result should not be nullified save for some matter of evidence or judicial instructions which seriously would challenge the integrity of the trial.
The only ground upon which the order for a new trial is based, as set out in the majority opinion, is the ruling of the trial judge in relation to the testimony of the witness Poovey and the remarks of counsel thereon. The circumstances in connection with defendant’s exception on this point, which the opinion sustains, as shown by the record, were these:
The homicide occurred at 6 p.m. The witness Poovey, son of the deceased, testified that the defendant came to the home of deceased about 2 that afternoon and inquired for the boy’s mother. In response to a question inferentially the witness puts the time at 2 :30. Defendant was walking and did not have anything in his hand. Being told deceased was not at home defendant went back towards his home. J. E. Sigmon testified the defendant came to his house, which was situated between *315defendant’s borne and tbe borne of deceased, and secured bis gun and shells about “2 or 3 or 4” o’clock in tbe afternoon.
During bis argument to tbe jury tbe solicitor stated that tbe defendant went to tbe borne of J. E. Sigmon about 2 p.m. on tbe day of tbe homicide and got bis shotgun and went from there to tbe borne of tbe deceased and asked Poovey where bis mother was and at tbe time be made tbe inquiry be bad tbe shotgun with him. Counsel for defendant objected and requested tbe court to direct tbe jury this argument was not substantiated by tbe record, which would show that at tbe time tbe defendant went to tbe borne of deceased and inquired where she was be did not have a gun. Tbe court told tbe jury they should rely upon their own recollection of tbe testimony and not tbe solicitor’s recollection or that of counsel for defendant, and denied defendant’s request. Apparently no further reference was made to tbe matter by tbe solicitor in bis argument. However, in bis charge to tbe jury, in recapitulating tbe evidence, tbe court stated that Poovey bad testified “that tbe defendant came and asked where bis mother was working; that be bad nothing in bis band then, and that be went towards bis home then, that tbe next time be saw him was about 6 p.m.” Also in bis charge tbe court instructed tbe jurors to be governed by their own recollection of tbe evidence, and if their recollection differed from that stated by tbe court to take their own recollection and not tbe court’s, and “if counsel on either side in this case have stated some parts of tbe evidence and your recollection differs you take your own recollection and not counsel’s.”
Tbe solicitor bad tbe right to argue tbe evidence in tbe light most favorable to tbe State. There was evidence that defendant secured tbe gun at 2 p.m., and that be went to tbe borne of deceased inquiring for her at 2:30. It was not unreasonable to argue that at that time be bad secured tbe gun and bad it available, notwithstanding Poovey bad said “be did not have anything in bis band.” Tbe court’s caution to tbe jury to be governed by their own recollection of tbe evidence, repeated in bis charge, coupled with tbe court’s quotation of Poovey’s testimony “that be bad nothing in bis band,” would seem to rob this incident of any suggestion of prejudice.
In S. v. Beal, 199 N. C., 278 (304), 154 S. E., 604, it was said: “Tbe general rule is that what constitutes legitimate argument in a given case is to be left largely to tbe sound discretion of tbe trial court, which will not be reviewed on appeal unless tbe impropriety of counsel be gross and well calculated to prejudice tbe jury.”
In tbe course of stating tbe contentions of tbe State, tbe court used this language: “Tbe State contends . . . that after defendant left there be went back towards bis own home and later went to J. E. Sigmon’s where be bad been keeping bis gun and shells . . . and got bis gun; that *316that was about 2 p.m. Then the State contends the defendant from there went to Bussell Sigmon’s (home of deceased) at about 2 :30 p.m. and asked Poovey where his mother was or if she was working. Then the State contends he had planned this killing; that he went and got the shotgun and ammunition from Mr. Sigmon’s and asked Poovey where his mother was, and when he found she was not there, the State contends he went some place (near) where the toilet was . . . where Sheriff Pitts found the grass mashed down and the cigarette butts and matches . . . and waited there until Mrs. Sigmon went to the toilet about 6 o’clock.”
I am unable to agree that the court’s statement of the State’s contention on this point was prejudicial or unfair. The defendant’s alert and experienced counsel heard it all and sat by without objection. If they thought it prejudicial they should have called the court’s attention to it at the time. Certainly the evidence showed' that defendant secured his gun from J. E. Sigmon’s home, and also that he went to the home of deceased looking for the deceased. The question which movement preceded the other should not be regarded as important in the face of the uncontradicted evidence that both movements actually occurred, and were followed in two or three hours by the deliberate shooting of the deceased for whom the defendant had been looking, with the gun he had thus secured. I do not think a jury of average intelligence who heard all the evidence could have been misled or their verdict influenced to the prejudice of the defendant.
It seems to me the record discloses a willful, deliberate and premeditated killing, unprovoked and Avithout palliation. The only defense was insanity, of which there was substantial evidence. As to that, under a correct charge, the jury has determined the issue against the defendant. I think the judgment should be affirmed.
ScheNgk and Sea well, JJ., concur in this dissent.