concurring: The dissent filed herein discusses a feature of the case to which no exception was entered and upon which the defendant does not rely in his brief. His counsel excepted for that (1) the court instructed the jury they could return in this case only one of two verdicts: guilty of murder in the first degree or guilty of murder in the second degree; and (2) the court failed to instruct the jury that they could return a verdict of not guilty. These two exceptions are directed to the one assignment of error debated here, to wit, the court erred in that it did not sufficiently charge the jury that it might, and the conditions *172under which it should, return a verdict of not guilty. This assignment is fully discussed in the majority opinion. In the conclusion there reached I concur.
But what about the rabbit flushed by the dissent ? Did the court unduly prejudice defendant in its instructions and by the colloquy with counsel during the charge? Since the defendant’s life is at stake, this attack upon the validity of the trial should not go unanswered.
There was uncontradicted and compelling evidence that defendant slew the deceased. It contains no element of mitigating circumstances, and its credibility was not substantially assailed. "Wisdom dictated that counsel, to save the life of their client, undertake to persuade the jury that the circumstances of the killing were not such as to establish premeditation and deliberation beyond a reasonable doubt. The record indicated that they, in conducting the defense and in their arguments to the jury, wisely pursued this course. That this was the theory of the defense was admitted here. So I understood.
The court, to be quite sure that it correctly interpreted the theory of the defense, gave counsel for the defendant full opportunity to challenge its instructions based thereon, to the end that it might correct them if it was in error. Practically at the threshold of the charge the colloquy between court and counsel, quoted in the majority opinion, took place. No exception was entered then and no assignment of error based thereon is presented here.
Thus counsel, in effect, formally admitted, in open court as well as in their arguments, that the homicide was committed by defendant and that the circumstances of the killing were such as to make it murder in the second degree. To this defendant indicated his assent. In my opinion this is the one reasonable interpretation to be placed on the colloquy between court and counsel.
Had counsel so stated at the beginning of the trial, it would have been binding on defendant. That it was made during the progress of the trial does not alter its force and effect. S. v. Grier, 209 N.C. 298, 183 S.E. 272. It was a judicial admission made in open court and in the presence of the defendant. It was made at a time and under circumstances which afforded him an opportunity to protest. S. v. Redman, 217 N.C. 483, 8 S.E. 2d 623. They were authorized to speak for him. The court acted on the admission. That it did so cannot be held for error. S. v. Grier, supra.
It is true the defendant did not go on the witness stand, and the colloquy took place in the presence of the jury. But the court made no direct inquiry of the defendant which put him “on the spot” and compelled, or even invited, an incriminating reply. The court did, however, by its inquiry, afford the defendant full opportunity to affirm or deny the *173formal statement of counsel, otherwise binding on him. This was a thoughtful and praiseworthy effort on the part of the trial judge to protect the defendant in all of his rights.
The formal admission had already been made. It did not require defendant’s affirmative ratification. His silence would have given assent, but he elected to affirm. How the action of the court in affording him an opportunity to repudiate it could be prejudicial to him I cannot perceive.
In any event, whether counsel referred to the only possible verdicts to he rendered or to the question of manslaughter, the court, notwithstanding the admission, admonished the jury that it should not convict the defend1 ant of any offense unless it was fully satisfied by the evidence that he committed the homicide charged. This feature of the charge is fully discussed in the majority opinion.
I vote to affirm.