The defendant was indicted for murder in the usual form under the Statute, 1887, ch. 58. When the case was reached for trial on Tuesday of Court, the attorneys for the defendant being present and not objecting, the Solicitor stated that nio special venire was necessary, as he should only ask for a verdict of murder in the second degree, or man*585slaughter, 'and no special venire was ordered. On Wednesday botlb sides announced their readiness, for tidal and the trial commenced. The defendant offered to challenge more than four jurors .peremptorily. The State objected. The Court sustained the objection, stating ait the time that the Solicitor did not aslc for a verdict for a capital felony, in which ease only lire def endant was entitled to more than four peremptory challenges. The defendant excepted to the refusal of the Court to allow him to challenge the fifth peremptorily.
The jury was sworn and empaneled. The Solicitor read the bill of indictment and stated tto the jury that he should not ask for a verdict of murder in 'the first degree, but only for murder in the second degree, or manslaughter, and the Court, in both the opening’ and concluding parts of the charg’e, stated to the jury that they must not render a verdict for any higher offence than murder in the second degree.
We do not see how 'the defendant has been prejudiced or deprived of his rights in any way. He was not exposed to trial for a capital felony before the petit jury. It is only when a person is “on trial for his life” (Code, sec. 1199) that he may challenge peremptorily 23 jurors, and the defendant was not on trial fox his life. The Solicitor gave notice before hand, and again in beginning the trial, that a capital verdictwas not asked for, and the Court instructed the jury that 'they could not return a verdict for murder in the first degree, -the defendant being on. trial for a lesser offence.
The Act of 1893, ch. 85, prescribes the same form of indictment for murder in the first degree and murder in the second degree, and this Court has held in State v. Ewing, 127 N. C. 555, that tire grand jury cau not endorse on such bill that it is a true bill for murder in the second degree, but must return it simply, as “a true bill” or “not a true bill.” But the statute does prescribe two distinct offences — murder in *586the first degree, which is punishable with death, and murder in the second dgree, which is not. As the State can not indicate that, it intends to put the defendant on trial for the lesser of these offences by indicating it in the form of the bill or by the indorsmment of the grand jury, the Solicitor must be allowed to dio sk> ait the earliest moment possible, to-wit, when the case is called and ait the time when, if the defendant, is to be pruit “on triall for his life,” a, special venire would be ashed and ordered. If this conld not be done, the pnhblic would be put in every instance 'to the inconvenience of summoning a large body of citizens needlessly from their usual avocations, and in many counties now to the useless expense of paying' them per diem and mileage for the trial of a case in which the representative of the State does not think the evidence would sustain a charge for a capital of-fence, and has declined to put him on trial therefor. This inconvenience and expense should he borne if the statute so required, or justice to the defendant, hut such is not the case. The language of the statute does not entitle one "indicted for a capital felony” to 23 peremptory challenges, but only one who is “on trial for his life,” and tire defendant- never was. The indictment on its face being for either offence, the State made it clear when tire case rva;s called that it elected to go to trial for the lesser. The defendant did not, and could not, object.
Under -an indictment or murder tire defendant inlay be convicted either of murder in the first degree, murder in the second degree, or manslaughter, and. oven if assault with a deadly weapon, or simple assault “if' the evidence shall warrant such finding” when he is not acquitted entirely. Laws 1885, ch. 68. Tt is as if all these counts were seuarately set out in the hill (for it includes all of them), State v. Gilchrist,, 113 N. C., 613; and the Solicitor can nol pros, any count, and a nol pros, in such case is in effect a verdict of ac*587quittal as to that. State v. Taylor, 84 N. C., 773; State v. Sorrell, 98 N. C., 738. His action here was at least equal to a not pros, as to tbe count for murder in the first degree. It may be that i't would be better fotrm to enter such renunciation on the record formally. Certainly it should have been done if the defendant bad requested it. But it does not appear here that it was not done, nor that 'the defendant asked that it should be done, and, if it was not dome, the defendant has not excepted on that ground, and certainly h'as suffered nJo prejudice from such failure, for the verdict is only for manslaughter, and the sentence is three years in the State’s Prison.
The declaration of the defendant thlat he intended to get some whiskey and go down to the party that night and ’’raise some hell,” was competent toi show malice, which was an element in the charge of murder in the second degree upon which he was on trial. It was not necesary to show special malice as it© the deceased, since he Was one of the persons at the party and embraced within the declaration of the defendant. Foster’s Grown Law,.; State v . Mills, 91 N. C., at page 596.
In lieu of special instructions asked, tire Court told the jury that it did not matter what had taken place between the parties before the killing — whether the defendant entered into the fight willingly or not — if at that time it was necessary for the defendant to kill tire deceased in order to save himself from great bodily harm or dearth, he would be excusable and their verdict should he “not guilty.” This charge was more favorable to the defendant than the instructions asked, and indeed was erroneous i-n that i't was more favorable to him than the law justified. State v. Medlin, 126 N. C., 1127; State v. Gentry, 125 N. C., 733; State v. Kennedy, 91 N. C., top of page 578; Imt the defendant can not complain of that.
Affirmed.