On the record, there is no question made by the defendant as to the sufficiency of the evidence to be submitted to the jury. The facts are exclusively in the province of the jury to determine. In the exceptions and assignments of error made by the defendant, we can see in law, no error, but will consider the material ones and the law applicable. The first contention of defendant: Should the court have permitted an injured by-stander to exhibit his injuries before the jury? This question we do not think is borne out by the State’s evidence. When Miller started to go into the store, he was followed by Welch and after Miller was shot down and Welch had squatted down to give him aid, he was shot in the jaw and knocked over and as he raised up, a bullet cut across his shoulder and scraped his hide, and as he backed *382up around the corner of Rickman’s store, the defendant Sheffield, kept firing at him — “be shot the last shot at me” — six shots were fired in all. The evidence clearly indicated that it was Welch that Sheffield was trying to kill and not Miller. The testimony of Welch was to the effect that the trouble between them had started three years before and the feeling continued down with the shooting. The question and answer objected to was as follows: “Q. Come down and tell the jury where you were hit and how many teeth were knocked out? Answer: (Witness shows jury.) Here on the right side, it went in and come out here and it bursted the jaw bone and they took out some pieces at the hospital. I don’t know how many teeth it knocked out.”
Welch testified from where Sheffield fired the shots. It was competent for the State to show the range of the bullet, this would tend to corroborate Welch as to where Sheffield was standing when he fired. We cannot see how it would be prejudicial or unnecessarily arouse the feeling of the jury. They could see the witness on the stand and could see the injuries better when closer to the jury. The ill will of Sheffield in this case was towards Welch not the dead man. The range of his riñe indicated that it might have been for Welch on the first shot, as he was close to Miller, but the other five shots — two' hit and the others followed Welch as he backed away. The evidence indicated that Sheffield had malice towards Welch and killed Miller when shooting' at Welch.
In Whartons’ Criminal Law, 12th ed., Vol. 1, part sec. 442, pp. 677-678, we find: “Where A. aims at B. with malicious intent to kill B., but by the same blow unintentionally strikes and kills C., this has been held by authorities of the highest rank to be murder.” S. v. Benton, 19 N. C., 196; S. v. Fulkerson, 61 N. C., 233; S. v. Cole, 132 N. C., 1069.
The law is thus stated where numerous authorities are cited, in S. v. Dalton, 178 N. C., 779 (781) : “In cases of this character, it is the generally accepted principle that, where one man, engaged in an affray or difficulty with another, unintentionally kills a bystander, his act shall be interpreted in reference to his intent and conduct towards his adversary, and criminal liability for the homicide, or otherwise, and the degree of it must be thereby determined.” On this aspect, the court below charged the jury, which was not excepted to, as follows: “I also charge you, gentlemen, that it is the law of this State that if one, attempting to commit a premeditated and deliberate murder, shall, while in the act, and as a result of it, kill another, he will in respect to the person killed be guilty of murder in the first degree; as if one lay poison for A. and it is taken by B., from which he dies, it is murder in the first degree; or if one, of malice, either express or implied, but without premeditation, and without deliberation, be in the act of killing A., and while in the act and as a result thereof, he kills B., it is murder in the second degree.”
*383The second contention of defendant: Did the court .err in admitting evidence of ill will between the prisoner and a witness, and the details of a former controversy between them ? This contention we do not think is borne out by the State’s evidence. The shots indicated defendant was trying to kill Welch, the witness, and not the one he killed. It is well settled in this jurisdiction that: Motive is not an essential element of murder in the first degree, nor is it indispensable to a conviction even in cases of circumstantial evidence, though it may tend to show the degree of the offense, or to establish the identity of the defendant as the slayer. S. v. Adams, 138 N. C., 688 (697); S. v. Lawrence, 196 N. C., 562 (565).
In S. v. Merrick, 172 N. C., 870 (873-4), we find: “In S. v. Norton, 82 N. C., 629, it is held that in an assault and battery evidence of previous declarations of the defendant tending to show malice is incompetent, but ‘If the defendant had been indicted for murder, for an assault with intent to kill, for a conspiracy or forgery, or any other offense where the scienter or the quo animo constitutes a necessary part of the crime charged, such acts and declarations of the prisoner as tend to prove such knowledge or intent are admissible, notwithstanding they may in law constitute a distinct crime.’ The declarations here made, especially in view of the immediate facts surrounding the homicide, probably had exceedingly small if any weight with the jury. But the fact that it may have been made 6 or even 12 months previously did not make such evidence incompetent as a matter for them to consider as to the weight to be given the evidence. In S. v. Exum, 138 N. C., 599, declarations showing ill will made several months previously were held by Iloke, J., 'undoubtedly competent.’ To same purport, S. v. Rose, 129 N. C., 575, and other cases. Indeed, if previous threats are competent, the prisoner cannot complain of the competency of evidence less effective to show animus.” S. v. Ballard, 191 N. C., 122. The testimony of Welch was to the effect that the ill will from the trouble, continued down to the shooting.
The version of the trouble between the two men three years before, was testified to by both Welch and Sheffield. The jury heard both sides, we do not think the admission to show malice was prejudicial.
The third contention of defendant: Did the court commit error in allowing evidence to be introduced as to the conduct of the son of the prisoner? From a perusal of this evidence, we do not think it merits the view taken by defendant. The defendant set up an alibi that he and Leonard Sheffield, his son, at the time of the shooting, were at his home in bed. The testimony objected to was to the effect that Leonard never came to fix the car before the shooting and was seen 3 to 5 minutes after the first shot in the vicinity. This was admitted by the court below *384solely for tbe purpose of contradicting tbe defendant Sheffield, if tbe jury so found that it did.
Tbe fourth contention of defendant: Did tbe court commit error in its charge to tbe jury as shown by tbe various assignments? We think, taking tbe charge as a whole, it was not prejudicial, but carefully gave tbe contentions of tbe State and defendant and tbe law applicable to tbe facts. Tbe charge in reference to burden of proof applicable to civil cases, was immaterial and harmless. Tbe law applicable to murder in tbe first degree and tbe duty of tbe State to establish same beyond a reasonable doubt, was clearly set forth. What was wilful, deliberation, premeditation and reasonable doubt was properly defined. Tbe law of murder in tbe second degree and malice was accurately defined, also manslaughter. Tbe law in regard to substantive evidence explained and corroborative and contradictory evidence applicable to certain witnesses was especially called to tbe attention of tbe jury. Tbe law of circumstantial evidence, was fully set forth. Tbe court below charged tbe jury: “But motive is not an essential element of murder in tbe first degree, nor is it indispensable to a conviction, even though tbe evidence is circumstantial. It is tbe intention deliberately formed after premeditation, so that it becomes a definite purpose to kill, and a consequent killing, without legal provocation or excuse, that constitutes murder in tbe first degree. (S) Tbe existence of a motive may be evidence to show the degree of tbe offense, or to establish tbe identity of tbe prisoner, as tbe slayer. (T) But motive is not an essential element of tbe crime, nor is it indispensable to a conviction of tbe person charged with its commission. Gentlemen of tbe jury, as I have already indicated, tbe prisoner says be wasn’t there at tbe time, that be was at home asleep and knew nothing about tbe shooting nor about Mr. Welch having been shot nor about Mr. Miller having been fatally shot until an hour or so after-wards. (U) In other words, tbe prisoner relies in part on what is known in law as alibi. An alibi, meaning elsewhere, is not, properly speaking, a defense within any accurate meaning of tbe word 'defense’ but is a mere fact which may be used to call in question tbe identity of tbe person charged, or tbe entire basis of tbe prosecution. (Y) Tbe burden of proving an alibi, however, does not rest upon tbe prisoner. Tbe burden of proof never rests upon tbe accused to show bis innocence, or to disprove tbe facts necessary to establish tbe crime with which be is charged. Tbe prisoner’s presence at, and participation in tbe crime charged, are affirmative, material facts that tbe prosecution must show beyond a reasonable doubt to sustain a conviction. For tbe prisoner to say be was not there is not an affirmative proposition; it is a denial of tbe existence of a material fact in tbe case. (W) It is only necessary for tbe prisoner in bis defense to produce such an amount of testimony, *385whether by evidence tending to show an alibi or otherwise, as to produce in the minds of the jury a reasonable doubt of his guilt. (X).
“Now, bearing in mind that the burden rests upon the State throughout the trial to prove the prisoner guilty beyond a reasonable doubt, I charge you if upon a consideration of all the evidence in the case, it leaves a reasonable doubt in your mind, then he would be entitled to a verdict of not guilty, and it would be your duty to so find.”
To the parts of the charge in brackets in capital letters, defendant excepted and assigned as error. We cannot, under the facts and circumstances of this case, hold same to be error. In Wharton’s Criminal Evidence, 10th ed., sec. 333, in part, pp. 673-674: “The defense of an alibi not only goes to the essence of guilt, but it traverses one of the material averments of the indictment, namely, that the defendant did then and there the particular act charged. It is not an affirmative, nor an extrinsic defense. The presence of the accused at the time and place must be shown as essential to the commission of the crime. To hold that where the accused, by the evidence of an alibi, has cast a reasonable doubt on the averment of his presence and participation, he must be convicted unless he establishes his noncooperation by a preponderance of proof, is to confound burden of proof with the presumption of innocence. When his proof is in, the final question remains, are the essential averments of the indictment proved beyond a reasonable doubt? If this question cannot be answered affirmatively, the accused is entitled to an acquittal, without regard to the manner in which such doubt was raised, whether by evidence or lack of evidence or any other factor in the case. The rule that the burden of proof never shifts, in criminal eases, applies to the defense of an alibi, which need only be proven so as to raise a reasonable doubt as to whether or not the accused was present when the crime was committed. It is error to charge the jury that the alibi must be established by a preponderance of proof, because the evidence offered as to the alibi is to be considered only in connection with all the other evidence adduced, to determine whether, on the whole case, the guilt of the defendant has been established beyond a reasonable doubt. To hold that the accused must, by his evidence, cover the exact time and the whole time during the commission of the crime charged, is error, the general rule being well established that evidence 'of absence is relevant and competent, even though it does not cover the exact time nor all of the time. Insufficiency of the evidence is not sufficient to exclude its consideration, as the final question of its sufficiency to raise a reasonable doubt is for the jury to determine from all the evidence.”
In S. v. Jaynes, 78 N. C., 504 (506), we find: “It is not 'essential’ to the successful proof of an alibi, that it should cover the whole time of the occurrence. Whether it covers the whole, or a part only, the *386effect of the evidence is a matter for the jury and they may give it the weight they may think it entitled to. The evidence was competent and therefore admissible, and it was an invasion of the province of the jury to tell them that unless the proof covered the whole time of the transaction, it lacked the essential element of successful proof. The burden of proving an alibi did not rest upon the prisoner. The burden remained upon the State to satisfy the jury upon the whole evidence of the guilt of the prisoner. It was only necessary for the prisoner in his defense to produce such an amount of testimony, whether by evidence tending to show an alibi or otherwise, as to produce in the minds of the jury, a reasonable doubt of his guilt.”
In S. v. Bryant, 178 N. C., 702 (707), it is said: “The judge’s charge on the question of the alibi was, it seems to us, not prejudicial to the defendant. He charged substantially that the prisoner relies upon an alibi, which means that he was not, and could not haye been at the place of the homicide when it was committed, as he was elsewhere at that time. He is not required to satisfy you of the alibi beyond a reasonable doubt, but if the jury is satisfied from the evidence that he was not at the place when the homicide was committed, and at the time when the deceased met her death, then a verdict of not guilty should be returned, etc., but if the jury is not satisfied, then it is for the jury to consider all the evidence and say whether or not they are satisfied from the evidence, beyond a reasonable doubt, that the prisoner killed the deceased,’ etc. This instruction was not erroneous but followed our decisions. S. v. Jaynes, 78 N. C., 504; S. v. Reitz, 83 N. C., 634; S. v. Starnes, 94 N. C., 973; S. v. Freeman, 100 N. C., 429; S. v. Rochelle, 156 N. C., 641.”
A defendant is entitled to instruction on alibi without special prayer. S. v. Melton, 187 N. C., 481; C. S., 564; S. v. Steadman, 200 N. C., 768 (769).
The fifth contention of defendant: Should the court have set the verdict aside on account of the prejudice and ill will of one of the jurors toward the prisoner ? Affidavits to the effect, were presented to the court below by the defendant, who asked for a new trial on the ground that one of the jurors had expressed an opinion that the defendant was guilty before he was sworn and empaneled to try the case. The affidavits were presented to the court about 5:00 o’clock p.m., 16 December, 1933, the court was about to expire by limitation of law. The juror, that the charge was made against, was in the courthouse at the time. In the record is the following: “The court would have to proceed to judgment, and that it would treat the affidavits of the State as being in denial of said affidavits of the prisoner, and that the same could be filed the following Monday, if the solicitor so desired, as of Saturday, 16 Decern-*387ber, 1933. That the affidavits filed by the State, bearing date of 16 December, 1933, were in fact executed and filed on Monday, 18 December, 1933. That before pronouncing judgment, the court announced that it would find as a fact that the prisoner was not prejudiced in his trial by reason of such alleged misconduct of the juror May, and so held.”
The record imports verity: “Upon the coming in of the verdict, the prisoner moves to set the same aside and for a new trial, upon the ground set forth in the affidavits filed upon which he bases his motion, and for errors already assigned and hereafter to be assigned. Whereupon, the court finds the following facts: That the juror, Jack May, who is alleged to have made the statement prior to his selection as a juror, as set out in the affidavits of 0. M. Scroggs and Lloyd Parham, together with each juror finally selected, was thoroughly examined when called and before he was chosen as( a juror, and by answers made to all interrogations by both the State and the prisoner, fully qualified himself as a fair and impartial juror. That the said Jack May is a man of high character, as indicated by the numerous affidavits filed, and is a man of intelligence and standing in his community. And the court being of the opinion that the prisoner was not prejudiced in his trial by the matters set forth in said affidavits and in said findings of fact, the motion of the prisoner for a new trial on said grounds is overruled and the prisoner excepts.”
In S. v. Levy, 187 N. C., 581 (588), is the following: “Challenges to the polls, or objections to individual jurors, must be made in apt time, or else they are deemed to be waived. It is too late after the trial has been concluded. In capital cases a challenge propter defectum or propter affectum should be made as the juror is brought to the book to be sworn and before he is sworn. S. v. Davis, 80 N. C., 412. The fact that an incompetent juror was permitted to sit on the case does not vitiate the verdict. S. v. Upton, 170 N. C., p. 771. But when the incompetency is not discovered until after the verdict, it is then discretionary with the judge presiding as to whether he will, under the circumstances, order a new trial, and his action in this respect is final. S. v. Lambert, 93 N. C., 618.”
In S. v. Cox, 202 N. C., 378, (380), speaking to the subject: “The law applicable to the decision of this question is well settled. In Goodman v. Goodman, 201 N. C., 808, 161 S. E., 868, it is said by Stacy, C. J., that rulings of the Superior Court on matters addressed to the discretion of the court, which involve no questions of law or legal inference, are not subject to review on appeal to this Court. Numerous cases in which this principle has been applied are cited in the opinion in that case. The motion for a new trial on the ground of newly discovered evidence, whether made at the trial term, or at a subsequent *388 term, of the court in cases where the motion may he made and allowed or disallowed at such term, are addressed to tbe discretion of tbe court. Tbe order allowing or disallowing tbe motion is not subject to review by this Court; it is made in tbe discretion of the judge and is conclusive, when made in a criminal action, on both tbe State and tbe defendant. S. v. Branner, 149 N. C., 559, 63 S. E., 169.”
Tbe matter complained of by defendant was in tbe sound discretion of tbe court below and not subject to review by this Court. Ve have examined with care all tbe exceptions and assignments of error made by defendant and think they cannot be sustained. Some of them are premised on facts that we do not think susceptible from tbe record. Some of the exceptions and assignments of error relate to contentions. Tbe whole matter was one mainly of fact for tbe jury. In tbe record, we can find no prejudicial or reversible error.
No error.