The defendant’s first exception is to the refusal of the court to quash the bill of indictment on the ground that his wife was examined as a witness before the grand jury. It likewise appears that five other witnesses were examined by the grand jury.
Speaking to the question in S. Moore, 204 N. C., 545, 168 S. E., 842, Connor, J., delivering the opinion of the Court, epitomized the law on the subject as follows:
“It is well settled as the law of this State that when a bill of indictment has been returned by the grand jury as a true bill, upon testimony all of which was incompetent, or upon the testimony of witnesses all of whom were disqualified by statute or by some well-settled principle of law in force in this State, the indictment will be quashed on the motion of the defendant made in apt time; but when some of the testimony was competent and some incompetent, or some of the witnesses heard by the grand jury were qualified and some disqualified, the Court will not go into the barren inquiry of how far testimony which was incompetent or witnesses who were disqualified contributed to the finding of the bill of indictment as a true bill. S. v. Levy, 200 N. C., 586, 158 S. E., 94; S. v. Mitchem, 188 N. C., 608, 125 S. E., 190; S. v. Coates, 130 N. C., 701, 41 S. E., 706. This is the general rule in other jurisdictions. 31 C. J., 808, and cases cited.”
The dying declaration of the deceased was correctly admitted in evidence, proper predicate having been laid for its introduction. S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Layton, 204 N. C., 704, 169 S. E., 650; S. v. Gregory, 203 N. C., 528, 166 S. E., 387.
With respect to the testimony of the defendant, the court instructed the jury as follows: “Now it is your duty, gentlemen, to take his testimony with a degree of allowance and to carefully and closely scrutinize it and scan it because of his interest in your verdict. If, after having *450done so, yon are satisfied be is telling tbe truth, it would tben be your duty to give bis testimony as much credibility as you give tbe testimony of a disinterested witness.” Exception.
Tbe decisions in S. v. Beavers, 188 N. C., 595, 125 S. E., 258, and S. v. Fogleman, 164 N. C., 458, 79 S. E., 879, are in support of tbis instruction. See, also, S. v. Beal, supra, and cases there cited. Tbe cases cited and relied upon by tbe defendant, S. v. Wilcox, 206 N. C., 691, and S. v. Ray, 195 N. C., 619, 143 S. E., 143, are not apposite.
It is not perceived upon what theory error may be imputed for refusal to arrest tbe judgment. A judgment in a criminal prosecution is subject to arrest, on motion duly made, when, and only when, some fatal defect or error appears on tbe face of tbe record. S. v. Satterfield, ante, 118, and cases cited.
We have found no reversible error on tbe record. Hence, tbe verdict and judgment will be upheld.
No error.