¥e have) set forth the facts on the part of the State and the facts to exculpate himself as stated by defendant in his contentions, perhaps more fully than was necessary; but, as we view the action, it resolved itself into purely a question of fact for the jury to determine from the evidence.
The jurisdiction of this Court in an action of this hind is, “To review, upon appeal, any decision of the courts below upon any matter of law or legal inference.” Const, of N. C., part Art. IV, sec. 8.
We will consider the exceptions and assignments of error made by defendant. The witness Gentry had in his testimony stated who were with him in the car he was driving; testified that the Car that struck his car came on them at a tremendous rate of speed; described the wreckage to his car and the parties thrown out from the compact. He stated, “My wife and other daughter, Mrs. Baker, were in the car at the time the machine was struck.” He was then asked: “Q. You may state whether or not they were injured by the same compact that killed your daughter, Evelyn.” The objection of defendant was overruled and the witness answered: “They were injured at the same time.” We think the evidence relevant and competent as tending to show the speed of defendant’s car. The case of S. v. Beam, 184 N. C., p. 730, cited by defendant, is not applicable, to the facts here.
The witness I. T. Chapman, who lived on State Highway No. 15, about 250 or 300 yards from the intersection of Mulberry Street, was at home and heard the crash of two cars, and just before heard a speeding ear pass his house going in the direction where the collision occurred. It took him about five minutes — ran most of the way — -to get to the wreck. He was asked the following question, which was excepted to: *251“Q. You may state about bow fast, in your opinion, if you bave an opinion satisfactory to yourself, tbis automobile tbat you beard pass your bouse just before tbe wreck was running at tbe time it passed your bouse?” (Provided tbe jury find from tbe evidence tbat tbis is tbe same car tbat caused tbe wreck.) Defendant objected on tbe ground tbe witness says be was in tbe bouse behind closed doors; didn’t see tbe car and don’t know whose ear it was and never saw tbe car. A. “I am quite sure tbe car was not running under sixty miles an hour tbat I beard pass tbe bouse.” Motion to strike out. (By tbe court) :. “Admitted with tbe qualification heretofore given. It must be found, of course, tbat tbis is tbe car tbat caused tbe wreck, otherwise it would not be material.” Tbis exception cannot be sustained. If error, it was harmless. Witness after witness testified for tbe State tbat they saw tbe defendant’s car along tbe route, and it was going sixty miles and more an hour. Elton Morgan, who was at tbe corner of Cabarrus Mill about 200 yards from where tbe ears crashed, about 50 to 100 yards from where Chapman beard it, said it was going 75 miles an hour. He put it nearer tbe collision as going 15 miles an hour more than Chapman. Gentry stated not less than 60 miles an hour when it struck bis car, “more like an airplane than an automobile."
Exception was taken to tbe testimony of tbe witness, J. E. Durham, as follows: “A ear passed me.” Q. “What direction was it (tbe car) going?” (Tbe court) : “Unless be connects it with tbis car, it would not be competent.” A. “I was coming down tbe highway at- tbe Rowan County line and Chrysler passed me at an unusual rate of speed. I got clean down out of tbe road when be went by me. It was a sedan. I kept on going down tbe highway, same direction tbe Chrysler was going, until I got down to tbe wreck.” Q. “Was tbe Chrysler car in tbe wreck a similar car to tbe one tbat passed you up on tbe highway?” A. “It was a Chrysler sedan in tbe wreck.” (Tbe court) : “Tbat is a circumstance.” “Tbe car that passed me was making about 60 or 65 miles an hour. Tbat was about three-fourths of a mile from tbe place of tbe wreck.” We think tbis evidence clearly competent as a circumstance. In fact, all tbe positive evidence was to tbe effect tbat all along tbe route just before tbe compact tbe car defendant was in was going 60 miles an hour and more. These exceptions cannot be sustained.
Exception is taken to tbe charge: “Now, to start with, tbe law presumes tbe defendant is innocent, and before you can convict him of any offense, tbe burden is upon tbe State to satisfy you from tbe evidence beyond a reasonable doubt of bis guilt.” Tbe ground of tbe exception is tbat tbe court below should bave said from all the evidence, instead of from the. evidence. Tbe alleged distinction is without a difference. Tbe *252humane judge who tried this action in tbe court below charged the jury, “Now, to start with, the law presumes the defendant is innocent.” This the court was not bound to give, at least without a prayer for instruction. S. v. Boswell, 194 N. C., 260.
The court fully defined reasonable doubt. “A reasonable doubt has been variously defined. It is sometimes said it means that you must be satisfied to a moral certainty of his guilt from the evidence, or that you must be fully satisfied. A reasonable doubt is not defined in law as any set formula. It is sometimes defined as meaning ‘fully satisfied or satisfied to a moral certainty.’ It may also be said to mean that the jury ought not to convict unless, after a consideration of all the evidence, with all the light derived from the argument of counsel and the instruction of the court, their minds are involuntarily led to the conclusion of guilt.” It will be noted that the court below charged precisely what defendant complained it did not charge, after a consideration of all the evidence; and went further: all the light derived from the argument of counsel. Fair vn\ the extreme to defendant.
Exceptions 9, 10 and 11 were to portions of his Honor’s charge upon murder in the second degree. These exceptions have been eliminated by the verdict of the jury, who convicted the defendant of manslaughter only.
In S. v. Cox, 153 N. C., p. 638, the defendant was convicted of manslaughter. The court said, at p. 644: “Exceptions 20 and 21 relate only to the question of malice, and as the jury has found the prisoner guilty only of manslaughter, they have become immaterial.” S. v. Worley, 141 N. C., at p. 768.
Exception 12. The court below charged the jury: “Now you see the fight hinges on this question of guilt or innocence, whether murder in the second degree or manslaughter, which I will reach later, hinges largely upon the question as to whether or not you find that Leonard was driving the car or Yogler was. driving the car, or somebody else, first; and, second, as to whether or not if Leonard was not driving the car, the car was being driven under his direction and under his control. If you find that the car was not being driven under his direction and under his control, then, of course, you could not find him guilty of any offense, and unless the State satisfies you from the evidence beyond a reasonable doubt that the car was driven by Leonard or was driven by somebody under the direction or control of Leonard, you could not find him guilty of any offense.” This portion of the charge in which the court below submitted to the jury the defendant’s theory that the car was not being driven by him or by any one else under his control. The court tells the jury expressly that unless the State, satisfied *253them from the evidence beyond a reasonable doubt that the car was driven by Leonard or was driven by somebody under his control, they must not find him guilty of any offense. We can conceive of no reason why this was not a. proper charge. It amounts simply to telling the jury that if they believed the defendant’s account of the transaction or had a reasonable doubt as to the State’s account of the transaction, they must acquit the defendant.
Exception No. 13. What the court said in full is given, not the excerpt objected to. The part objected to by defendant is in parentheses: “Now the State contends that at any rate, it was an unlawful killing; that this young woman was killed unlawfully, and the State contends that Leonard was the man that did the killing (and if you do not find that he did it through malice, as heretofore defined, implied malice, that you ought to find that he did it unlawfully; that if it was not that dangerous conduct and reckless and wanton conduct that evinced depravity of mind and disregard for human life, that it was that degree of negligence and that degree of misconduct that brought about the death of the deceased and was the direct result of this gross negligence of the defendant to such an extent that he was the cause of her death, and that it was an unlawful death without any mitigating circumstances or excuse, and that therefore you ought to find that he is guilty of manslaughter).” This was a contention. S. v. Reagan, 185 N. C., at p. 713; S. v. Sinodis, 189 N. C., at p. 571.
The court, had theretofore defined manslaughter: “Manslaughter is the unlawful killing of a human being without malice and without any just cause or reasonable excuse. . . . Now, we come to the definition again to manslaughter: Manslaughter'is the unlawful and wilful killing of another without malice, express or implied, and without legal justification or excuse, and under given conditions this crime may be established, though.the killing be unintentional. When one unlawfully kills as a result of anger suddenly aroused by provocation which the law deems adequate, and the killing is done before sufficient time has elapsed, with passion so aroused to subside and reason to resume her sway, in such instance the anger so aroused is held to displace malice and to reduce the unlawful homicide to the grade of manslaughter. Thus, if two persons fight upon sudden quarrel, and during the progress of the fight one slays his adversary, slays in anger aroused by the combat, this ordinarily will be manslaughter.” If defendant desired a fuller and more specific definition of manslaughter, he should have asked for it by proper prayer for instruction. Davis v. Long, 189 N. C., at p. 137. The exception cannot be sustained.
The defendant in his brief says: “The crucial point in this case, and the one upon which it largely depends, under the State’s theory of the *254case, and the evidence, is whether the defendant was driving the car himself. There is no evidence nor contention that any one else was driving the car by his direction and authority, and the State hangs its whole case upon its ability to prove that the defendant was himself driving the car at the time of the wreck, in person. We respectfully submit that there was not sufficient evidence on this point to warrant a conviction. When defendant renews his motion to dismiss as of nonsuit at the close of all the evidence, then this second motion must be considered in the light of not merely the evidence which was introduced by the State, but of all the evidence offered at the trial. S. v. Reagan, 185 N. C., 710.”
This was defendant's exception under C. S., 4643 (civil actions, 567), the refusal of the court below, upon defendant’s motion for judgment as in case of nonsuit at the conclusion of the State’s evidence, and at the conclusion of all the evidence. The principle contended for in defendant’s brief is correct law, but we cannot understand its application in the present action.
All the parties in defendant’s car, except defendant, viz., George Yogler, C. W. Davis and Mrs. C. W. Davis, testified that defendant was driving the car. O. W. Davis to the effect that defendant was driving when he could see the lights of Kannapolis, and then he dozed off to sleep, and the next thing he knew “it was like a flash, and the next thing I knew was the next morning in the Concord hospital.” Numerous witnesses testified that defendant admitted he was driving the car when the wreck occurred. This was a question of fact this Court has nothing to do with, as heretofore stated. The principle of law in actions of this kind is well stated in S. v. Rountree, 181 N. C., 535; S. v. Trott, 190 N. C., 674.
In the Rountree case, supra, at p. 538, it is said: “The degree of negligence necessary to be shown on an indictment for manslaughter, where an unintentional killing is established, is such recklessness or carelessness as is incompatible with a proper regard for human life. S. v. Gash, 177 N. C., 595; S. v. McIver, 175 N. C., 761; S. v. Tankersley, 172 N. C., 955.”
The jury has found that defendant drove the car °on State Highway No. 15 that killed the little girl, Evelyn Gentry, some 14 years old. The State’s evidence indicated that defendant was under the influence of intoxicating liquor and driving his car at a tremendous rate of speed. When it struck the railroad switch crossing in Kannapolis shortly before the compact with the car the little girl was riding in, defendant’s car jumped two or three feet. It was coming like an airplane, 60 to 75 miles an hour. It is undisputed on the record that Rev. C. K. Gentry, father of the little girl, was returning from religious services with his wife, daughter, Mrs. Baker, his grandchild and little Evelyn, who was *255killed. He was driving carefully. The compact threw Evelyn 50 feet south of the wreckage, horribly mangled, totally decapitated, brohen to pieces. While the dead girl was on the ground and her father standing there, defendant walked up “and with a drunken leer, thick tongue” had the conversation narrated in the testimony, and admitted he was driving the car, and finished by saying to the dead girl’s father, “You are a hell of a preacher, talk like that.” The patience of the preacher, under such trying circumstances, is to be commended.
The State’s evidence fully warranted the conviction of defendant for manslaughter or more. On the whole record the court below gave defendant everything he was entitled to in law.
The record discloses a fearful tragedy from the use of intoxicating liquor, not only the death of the little girl, but the injury and scars that those in the wreckage will carry to their graves. Punishment has come to the defendant and misfortune and grief to those near him. Surely the wise man was never wiser than when he said of intoxicating liquor: “At the last it biteth like a serpent and stingeth like an adder.”
For the reasons given, we find in law