We have carefully considered his Honor’s instruction, and we are unable to find any error of which the prisoner can complain.
Every aspect raised by the testimony was with great particularity presented to the jury, and the law applicable thereto was correctly and intelligently explained.
Among other things, the Court charged the jury, “that if they found from the' evidence that the prisoner had *844formed & particular and definite purpose to kill the deceased, .and in pursuance of such purpose procured the gun and sought the deceased and shot and killed him, he was guilty, no matter what the deceased was doing at the time he was shot.” To this part of the charge the prisoner excepted. There can be no serious question but that there was abundant testimony to support the instructions. After a quarrel with the deceased, the prisoner said: “ I am going off and get me a gun and I am going to shoot this damned negro’s heart out.” The case further slates that there was-testimony tending to show the following facts: That “ the prisoner went off a mile and a half, or two miles, procured a double-barrelled shotgun, came back and inquired where deceased was, and said he was going to kill him and on being informed where deceased had gone, went in that direction some distance, stopped and waited some time (not definitely stated how long) when he saw deceased approaching. When deceased was within about fifteen yards of him, he said: “ 0 yes, God damn you, I am going to shoot your dern heart strings loosethat deceased came right on, but said nothing till he got in'a few steps of prisoner; the prisoner stepped from five to eight steps from the path he and deceased were in. Deceased raised his arms, having nothing in his hands, and told prisoner to shoot, and prisoner fired and hit the deceased in the right side of the neck, and he fell down and died instantly.”
The testimony surely authorized the instruction given by the Judge, and the principle which he declared is so clearly correct that it is hardly necessary to cite authority in support of it.
An extract from State v. Gooch, 94 N. C., 1014, will suffice our purpose. The Court said: “If the jury believe from the evidence that the prisoners went to the store of Cheat-ham with the purpose, under the pretense of fighting, to stab Cheatham, and either the one or the other stabbed and *845killed the deceased, it was murder in the assailants, no matter what provocation was given, or how high the assailant’s passions were aroused during the fight, for the motive in such a case is express.” State v. Lane, 4 Ired., 113; State v. Hogue, 6 Jones, 381; State v. Martin, 2 Ired., 101; Whart. Crim. Law, § 950.
2. After the sentence was pronounced the prisoner excepted, because when the verdict was rendered “ the formality of requiring him to stand up and look upon the jury was, by inadvertence, omitted.” The object of this formality is to identify the prisoner, and while it is better to observe the form, a failure to do so, where there is no question as to the actual presence of the prisoner, is by no means fatal to the verdict. Mr. Bishop, in his second volume Crim. Prac., § 829, says that “ there is no reason to suppose that any minute departure from the old form will vitiate the verdict.” There is no merit in the exception, and it must be overruled.
3. The remaining exception is addressed to the refusal of the Court to continue the case because of the absence of an alleged material witness. It is too plain for argument that this was within the discretion of the trial Judge, and that, his ruling in this respect cannot be reviewed by this Court.
Affirmed.