The defendant, at the close of the State’s evidence and at the close of all the evidence, moved to dismiss the action or for judgment of nonsuit. C. S., 4643. The court below denied the motions. This constitutes defendant’s sole exceptions and assignments of error. The only question involved in this appeal: Was there sufficient evidence of defendant’s guilt to be submitted to the jury? We think so.
On motion to dismiss or judgment of nonsuit, the evidence is to be taken in the light most favorable to the State, and it is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. “An exception to a motion to dismiss in a criminal action taken after the close of the State’s evidence, and renewed by defendant after the introduction of his own evidence, does not confine the appeal to the State’s evidence alone, and a conviction will be sustained under the second exception if there is any evidence on the whole record of the defendant’s guilt.” S. v. Earp, 196 N. C., 164 (166). See S. v. Carlson, 171 N. C., 818; S. v. Sigmon, 190 N. C., 684. The evidence favorable alone to the State is considered- — - defendant’s evidence is discarded. S. v. Utley, 126 N. C., 997. The competency, admissibility, and sufficiency of evidence is for the court to determine, the weight, effect, and credibility is for the jury. S. v. Utley, supra; S. v. Blackwelder, 182 N. C., 899; S. v. Lawrence 196 N. C., 562 (564).
*764The charge of the court below is not in the record, and the presumption is that the court below charged the law applicable to the facts.
The defendant was mad with the deceased because he hauled some corn from defendant’s tenant’s farm to pay a bill which the tenant owed to the Oxleys. About 2 o’clock of the day of the killing defendant told Richard Casper “that he would get even with Will Oxley, a d-s. o. b., before night.” He went to deceased’s son’s (Dan’s) store about 3 :30 o’clock that afternoon and came back about 4:15 o’clock. He said that he came there to settle the matter of corn. The deceased was sleeping at the time defendant came and when deceased awoke he went across the road to Hawkins’ filling station. There was a quarrel between Hawkins and the deceased — the deceased took an axe handle away from Hawkins. The defendant went up and took hold of the deceased. The deceased, with the axe handle, kept backing across the road to his son’s filling station, the defendant following him. He had backed from one station, across the highway and both shoulders of the road, until he got even with the gas tanks — then it was that defendant shot him four times, all the shots taking effect. The deceased was an old man and the defendant was comparatively a young man. The defendant was larger than the old man. The deceased did not strike at defendant at any time. Several witnesses hollered to defendant, in substance, “Guy, I certainly would not shoot that man.” After defendant had shot the deceased, he said, “G-- d-you, I reckon you will stop now.”
In S. v. Bland, 97 N. C., 438 (443), speaking to the subject, it is said: “The law does not clothe an officer with the authority to judge arbitrarily of the necessity of killing a prisoner to secure him, or of killing a person to prevent a rescue of a prisoner. He cannot kill unless there is a necessity for it, and the jury must determine, from the testimony, the existence or absence of the necessity. They must judge of the reasonableness of the grounds upon which the officer acted.”
In S. v. Pugh, 101 N. C., 737 (740), as to the rights of an officer to make an arrest, it is said: “A grossly unnecessary, excessive, and wanton exercise of force would be evidence — strong evidence — of a willful and malicious purpose, but the jury ought not to weigh the conduct of the officer as against him in 'gold scales’; the presumption is he acted in good faith. This is the rule applicable in such cases as the present one, as settled in S. v. Stalcup, 24 N. C., 50; S. v. McNinch, 90 N. C., 695, and the cases there cited. So, also, S. v. Bland, 97 N. C., 438.” S. v. Dunning, 177 N. C., 559 (562-3); Holloway v. Moser, 193 N. C., 185; S. v. Jenkins, 195 N. C., 747.
In S. v. Orr, 175 N. C., 773 (775), we find: “If Grant, instead of acting as an officer of the law in arresting Birchfield, engaged in an *765affray with him and afterwards assisted Orr in causing his death, he is at least guilty of manslaughter, of which he was convicted.”
On this record it is presumed that the court below charged the jury on the law, as above stated, and applied the law applicable to the facts.
On two aspects the evidence was sufficient to be submitted to the jury: (1) The defendant was, in the language of the witness, “mad” at deceased and had made threats against him, and the defendant shot deceased for revenge. (2) If he was acting in good faith, as an officer, attempting to arrest deceased, it was for the jury to determine whether he used unnecéssary and excessive force. Without any danger to himself, he shot deceased, while backing away from him, four times in the body, and at the time the evidence is that witnesses appealed to him not to shoot.
The defendant is a constable, and his first duty is to “preserve the public peace.” It is in evidence that he was a frequent violator of the law, and there was at the time of the trial an indictment pending against him “for driving an automobile while under the influence of whiskey.” The defendant’s counsel ably argued the case in this Court, and no doubt before the jury, but we think the court below correct in submitting the matter to the jury.
In the record we see
No error.