In tbe outset of bis argument tbe prisoner impeaches tbe legal sufficiency of tbe verdict and judgment on tbe ground that tbe trial court was without jurisdiction to bear and determine tbe question of bis guilt. Tbe position is predicated on Article IV, sec. 11, of tbe Constitution. It is therein provided that tbe General Assembly may by general laws provide for tbe selection of special or emergency judges to bold tbe Superior Courts of any county or district when tbe judge assigned thereto, by reason of sickness, disability or other cause, is unable to attend and bold said court, and when no other judge is available to bold tbe same, and that such special or emergency judges shall have tbe power and authority of regular judges of tbe Superior Courts, in tbe courts which they are appointed to bold. Accordingly, tbe General Assembly at tbe session of 1927 passed an act authorizing tbe Governor to appoint four special judges, two from tbe Eastern and two from tbe Western Judicial Division, whose term should begin 1 May, 1927, and end 30 June, 1929. Judge Townsend was appointed one of tbe special judges from tbe Eastern Division and was thereby vested with “all tbe jurisdiction which is now or may be hereafter lawfully exercised by tbe regular judges of tbe Superior Courts which they are appointed or assigned by tbe Governor to bold.” Public Laws 1927, eb. 206. On 5 May, 1927, Governor McLean assigned Judge Townsend to bold tbe term at which tbe prisoner was tried, reciting in tbe commission that “by reason of sickness, disability, or other cause, tbe regular judge assigned to bold said term is unable to attend and bold tbe same.”
We find in tbe record a certificate, dated about a month after tbe trial bad been concluded, that tbe resident judge bad been “available to bold tbe court.” This Court has jurisdiction to review upon appeal any decision of tbe courts below upon any matter of law or legal inference (Const., Art. IV, sec. 8); but it cannot consider a paper which, unrelated to tbe trial, purports upon its face to have raised an issue of fact after tbe adjournment as to tbe recitals set forth in tbe commission given tbe presiding judge.
*466At no time during bis trial did tbe prisoner assail tbe validity of tbe commission; bis challenge first appears in bis assignments of error. In S. v. Hall, 142 N. C., 710, 713, it is said tbat jurisdiction is never applied to any question touching tbe existence of tbe court itself and is not conferred until tbe court, designated to exercise it has been brought into being according to tbe mode prescribed by law. If it be granted tbat tbe prisoner intended to say, not tbat tbe court, if legally organized, bad no jurisdiction of tbe crime, but tbat it was called and organized without authority of law, bis position is none tbe more favorable. In bolding tbe court Judge Townsend served in tbe capacity of a judge de jure; pursuant to constitutional and statutory authority be was in tbe exercise of bis office as a matter of right. But if be bad been judge de fado as defined in S. v. Lewis, 107 N. C., 967, bis duties, discharged under color of a valid appointment, would have been conclusive, not as to tbe State perhaps (33 C. J., 971, sec. 101), but as to tbe public and tbe rights of third parties. In People v. Staton, 73 N. C., 546, tbe Court observed, “And we think it may now be considered as settled by our own decisions and by tbe English and American cases and by tbe text-writers, tbat there is no difference between tbe acts of de factor and de jure officers so far as tbe public and third persons are concerned.” Tbe result is tbat in any view of tbe case tbe prisoner’s first exception must be overruled. Burke v. Elliott, 26 N. C., 355; Gilliam v. Riddick, ibid., 368; S. v. Speaks, 95 N. C., 689; S. v. Turner, 119 N. C., 841; S. v. Hall, supra; S. v. Wood, 175 N. C., 809; S. v. Montague, 190 N. C., 841.
Tbe second exception relates to tbe testimony of tbe witness Evers. He said tbat about ten days before tbe homicide tbe prisoner bad told him tbat tbe deceased “had bad some talk about him, and be was going to get even with him.” It is contended for tbe defense tbat these words do not import malice, and tbat without them there is no evidence of such malice as tends to establish premeditation and deliberation. Tbe prisoner’s declaration was in tbe nature of a threat; hence tbe testimony was not incompetent. In S. v. Foster, 130 N. C., 666, evidence of a threat made a month before tbe homicide was held admissible as tending to show malice and as “some evidence” of premeditation and deliberation. If tbe evidence was competent for any purpose there would have been error in excluding it. S. v. Burton, 172 N. C., 939; S. v. Johnson, 176 N. C., 722; S. v. Baity, 180 N. C., 722; S. v. Vaughan, 186 N. C., 759.
Mrs. Doss Bowen was permitted to testify tbat a short time before tbe homicide tbe prisoner took a pistol from bis pocket in her presence and in tbe presence of bis wife, whereupon tbe latter addressing her husband remarked, “You broke in my trunk' and got it.” This was *467objected to; but the objection was properly overruled. Although the wife is not a competent witness against the husband in the trial of a criminal action, her declarations made in his presence, and in the presence of a third party, and naturally calling for some action or reply if untrue, he remaining silent, are admissible in evidence. S. v. Record, 151 N. C., 695; S. v. Randall, 170 N. C., 757, 762; S. v. McKinney, 175 N. C., 784; S. v. Evans, 189 N. C., 233. It is suggested that without regard to this principle the wife’s statement had no reference to the homicide and was made, if at all, before the commission of the crime. The evidence was competent in that it tended to show the prisoner’s possession of the pistol a short while before he came to the farm and called the deceased to the car, for at this time the prisoner had not testified or admitted the homicide.
The deceased was killed about 2 o’clock on Friday; on Monday morning the prisoner surrendered himself to the sheriff of Cumberland County. The State offered evidence to show that search had been made for the prisoner immediately after the death, and thereafter without break until the first of the next week. The purpose was to show flight, and flight is a circumstance to be laid before the jury as having a tendency to prove guilt, although as his Honor correctly instructed the jury, it is not evidence of premeditation or deliberation. S. v. Foster, supra; S. v. Tate, 161 N. C., 280. Fruitless search may be shown by laymen as well as by officers of the law.
It is urged for error that his Honor failed to state the evidence in a plain and correct manner and to declare and explain the law arising thereon. C. S., 564. In reference to the first of these clauses it may be said that recapitulation of all the evidence is not demanded and that the requirements of the statute in this respect are met by presentation of the principal features of the evidence relied on respectively by the prosecution and the defense. An omission from the charge of an important feature of the evidence should be called to the attention of the court before the verdict is returned. This opportunity was given the prisoner’s counsel, the judge inquiring near the close of the charge whether he had overlooked any of the contentions. Only one was suggested, and it was submitted to the jury. S. v. Grady, 83 N. C., 643; S. v. Pritchett, 106 N. C., 667; Boon v. Murphy, 108 N. C., 187; S. v. Ussery, 118 N. C., 1177.
Concerning the necessity of declaring and explaining the law it has been held in quite a number of eases that nothing more is required than a clear instruction which applies the law to the evidence and gives the position taken by the respective parties as to the prominent and controlling features which make for the ascertainment of the facts. ¥e adhere to the well settled principle so clearly enunciated in Merrick’s *468 case that a judge in bis charge to the jury should present every substantial and essential feature of the case embraced within the issue and arising from the evidence; and we would not hesitate to declare any material departure therefrom substantial cause for a new trial. S. v. Merrick, 171 N. Cl., 788, 795. But we have not discovered in this case any such disregard of the statute as calls for the application of this salutary doctrine.
The seventh and eighth exceptions are so obviously untenable as to require no comment; as to the ninth we find no evidence to which the doctrine of cooling time should have been applied; and in the instruction as to retreating to avoid a menaced encounter we have found no error of which the prisoner can reasonably complain. The eleventh and twelfth exceptions also are without substantial merit. In the recital of the prisoner’s contentions the cause he assigned for his conduct after the homicide and for leaving home was clearly stated. If there was error in setting out the contentions which are the subject of the thirteenth, fourteenth and fifteenth exceptions, it should have been pointed out when corrections of this character were requested by the court. S. v. Ashburn, 187 N. C., 717; S. v. Reagan, 185 N. C., 710; S. v. Little, 174 N. C., 800.
The exception last to be considered was taken to the court’s refusal to withdraw from the jury the question of murder in the first degree. It is argued that there was no evidence of premeditation and deliberation; but we cannot concur. The evidence of self-defense was at least subject to doubt. The prisoner said that when he arrived at the farm the stick with which the deceased assaulted him was “in the car between the back of the front seat and the coat rack.” His wife testified: “I did not see the stick any more after the shooting until after I got home. Next time I saw it, it was between the coat rack and the seat, the same place it was before the shooting.” This, and evidence of the threat, of the way in which the pistol had been procured, and of circumstances explained by two eye-witnesses, if believed by the jury, formed a sequence of incidents fully warranting the finding that the death of the deceased was the result of a preconceived purpose. S. v. McCormac, 116 N. C., 1036; S. v. Dowden, 118 N. C., 1145; S. v. Daniels, 164 N. C., 464; S. v. Lovelace, 178 N. C., 762.
In reviewing the several assignments of error we have not been inadvertent -to the gravity of the judgment. In the interest of human life we have examined the exceptions, the evidence, the instructions, the entire record, and we are unable to see wherein the prisoner has just and legal ground for demanding a new trial.
No error.