At tbe close of tbe State’s evidence, and at tbe close of all tbe evidence, tbe defendant in tbe court below made motions to dismiss 'tbe action or for judgment of nonsuit. C. S., 4643. Tbe court below overruled these motions, and in this we see no error.
These exceptions and assignments of error were not set forth in defendant appellant’s brief. Rule of Practice in tbe Supreme Court, part of Rule 28 (200 N. C., 831) is as follows: “Exceptions in tbe record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.” This is tantamount to tbe admission that tbe evidence was sufficient to be submitted to tbe jury. Nowell v. Basnight, 185 N. C., 142 (148); Jones v. Ins. Co., 210 N. C., 559.
Tbe defendant sets forth tbe questions involved on tbe appeal:
(1) Did tbe court err in refusing defendant’s motion to transfer this cause from tbe Superior Court of Mecklenburg County, North Carolina, to tbe United States District Court for tbe Western District of North Carolina, to be certified by said United States District Court as to tbe place of trial? We cannot so bold.
To sustain this motion defendant filed an affidavit and cited for bis position Act of Congress, 3 March, 1863, Title 28, secs. 74 and 75, Judicial Code 31 and 32. On tbe petition tbe court below ruled: “Petition and motion is denied for tbe reason that tbe petition does not allege any denial of any rights by reason of any state law, statute, ordinance, regulation, or custom hostile to tbe rights of tbe petitioner.”
In Fitzgerald v. Allman, 82 N. C., 492 (494), speaking to tbe subject, it is said: “In State v. Dunlap, 65 N. C., 491, decided at June Term, 1871, tbe statute is construed to extend to, and Include cases where, by reason of prejudice in the community, a fair trial cannot be bad in tbe State courts’; and this construction, followed in tbe court below, embraces that before us. Since this decision, tbe clause in tbe constitution which this act is intended to enforce has been interpreted and explained by tbe Supreme Court of tbe United States, more in consonance with its language and purposes, and it has been confined to trials in states whose *493laws discriminate adversely against a class of citizens to wbicb tbe persons asking for tbe removal belong. . . . (p. 495). It is not pretended that tbe laws and judicial practices in tbis State recognize any distinctions among its citizens 'on account of race, color, or previous condition,’ or tbat every right and privilege possessed by tbe white is not equally shared by tbe colored man. For local prejudice, tbe basis of tbe proposed removal, tbe law provides for a transfer of tbe cause, whoever may be tbe parties, to a county where such prejudice does not exist and a fair trial may be bad.” Slaughter House cases, 16 Wall., 36; Gibson v. Miss., 162 U. S., 565; Kentucky v. Powers, 201 U. S., 1; Norris v. Alabama, 294 U. S., 587.
Tbe remedy for any wrong, as complained of by defendant, is in tbe State Court and ultimately in tbe Supreme Court of tbe United States by writ of error to protect any right secured or granted to tbe accused by tbe Constitution or laws of tbe United States wbicb has been denied to him in tbe highest court of tbe State in wbicb tbe decision in respect to tbat right can be bad. Powers case, supra.
(2) Did tbe court err in refusing to quash tbe bill of indictment 'because tbe grand jury wbicb found tbe bill of indictment was improperly and illegally drawn, organized, and constituted? We think not, as tbe grand jury was legally organized.
Tbe court below found: “Motion to quash tbe bill of indictment is denied and tbe court finds as a fact there are approximately 10,000 names of tbe white race in tbe jury box and something over 600 names of tbe colored race in tbe jury box, and at tbis term of court there is one colored man on tbe grand jury tbat returned a true bill in tbis case, and tbat there has been no discrimination against tbe defendant.”
Tbe clerk of tbe board of county commissioners testified: “Tbe scrolls containing tbe colored race, approximately 650 in number, are still in red ink and tbe scrolls containing tbe names of tbe white race are in black ink. Tbat condition existed at tbe time it was done in red and black ink so as to distinguish them, so they would know whether to look for a white man or a colored man. There is no discrimination in tbe selection of names; when a child draws a name out we put tbe name on tbe jury list, have a colored man on tbe grand jury now. There is no discrimination in tbe selection of tbe grand jury or petit jury. When tbe names are called out I put them on tbe list to give tbe sheriff to be summoned for jury service. We have been using a four-year-old child and if tbe name comes out red or black it is put on tbe list. Tbe purpose in two different colors of ink is to see who to look for. It makes it easier to look for them. . . . There are about 650 names of tbe colored race and approximately 10,000 whites. There is one colored man on tbe grand jury now who found tbis bill. Q. In drawing tbe *494jurors at former terms was a colored man on the petit jury? Ans.: Yes, sir, ever since last year we have had colored men drawn and on the civil jury frequently. I do not know how many. Q. Regardless of how many were drawn there was not but one colored man drawn this last time? Ans.: Yes, there were two. That is all that came out of the box; it should average about two out of thirty if the average is kept up.”
The exclusion of all persons of the negro race from a grand jury, which finds an indictment against a negro, where they are .excluded solely because of their race or color, denies him the equal protection of the laws in violation of the Constitution of N. C. and of the United States. S. v. Peoples, 131 N. C., 184.
The jury list and method of drawing the jury is set forth in C. S., 2312, 2313, and 2314. The names on the list are put in a box with two divisions, marked “one” and “two,” and two locks. One is kept by the sheriff and one by the chairman of the board of county commissioners. The manner of drawing the jury is by a child not more than ten years of age, who draws the names of the jury out of partition marked “one.” (In the present ease the child was four years of age.) The scrolls so drawn to make up the jury are put in the partition marked “two.”
The findings of the trial court, after hearing evidence, that the jurors were drawn, sworn, and impaneled in accordance with these sections, and that there was no discrimination against persons of the negro race in making up the jury lists, are conclusive on appeal when supported by sufficient evidence, in the absence of gross abuse. S. v. Cooper, 205 N. C., 657. His Honor found that there had been no discrimination against persons of the defendant’s race in the selection of the grand jury. This finding, when supported by evidence, is conclusive on appeal in the absence of gross abuse. S. v. Daniels, 134 U. S., 641; Texas v. Thomas, 212 U. S., 278; S. v. Cooper, supra.
The reason for having a child not more than ten years of age to draw the jurors is to prevent fraud in the selection of the jury, so that the law can be administered impartially and without discrimination. The child draws from the jury box the names of all sorts and conditions of men, white and negro persons, Jew and Gentile, who are qualified to serve under the law. A more perfect system could hardly be devised to insure impartiality. It is the duty of those charged with this important arm of the government to see to it that these provisions of the statute are carried out as provided in C. S., 2312, supra, which is as follows: “The board of county commissioners for the several counties at their regular meeting on the first Monday in June, in the year nineteen hundred and five, and every two years thereafter, shall cause their clerks to lay before them the tax returns of the preceding year for their county, from which they shall proceed to select the names of all such persons as have paid *495 all the taxes assessed against them for the preceding year and are of good moral character and of sufficient intelligence. (Italics ours.) A list of tbe names tbus selected shall be made out by the clerk of the board of commissioners and shall constitute the jury list, and shall be preserved as such.”
The child drawing the jury list, by custom, is often blindfolded to insure impartiality. If as many negroes are not drawn as defendant desired, he cannot complain — the chance in selecting same are applicable to both the white and negro race alike. The selection is fair and impartial.
(3) Did the court err in failing to charge the jury as to second degree burglary? "We think not. All the evidence on the part of the State showed it was burglary in the first degree, if the State’s evidence was to be believed by the jury. There can be no question that there was sufficient evidence to be submitted to the jury. S. v. Smith, 201 N. C., 494 (496) is contrary to the position taken by defendant. It is there said: “This Court has repeatedly disapproved the theory that the degree of guilt may arbitrarily be determined in the discretion of the jury without regard to the facts in evidence. The jury, having ‘no discretion against the obligation of their oath,’ should never award a verdict independent of all proof. S. v. Fleming, 107 N. C., 905. The primary object of a verdict is to inform the court as to how far the facts established by the evidence conform to those which are alleged or charged and put in issue. If neither the specific act charged nor a lesser degree thereof nor an attempt to commit either of them is supported by proof, neither the principal nor the subordinate act can properly be made the basis of an affirmative verdict. In S. v. Johnston, 119 N. C., 883, the prisoner requested an instruction ‘that when the crime charged in the bill of indictment is burglary in the first degree the jury may render a verdict in the second degree if they deem it proper to do so.’ The prayer was denied and on appeal the Court said: ‘Shields, a witness for the State, testified that at the time of the burglary he and his wife and daughter were occupying rooms in the house; that he was sleeping in a room on the first floor and his wife and daughter were sleeping in a room upstairs. Upon this testimony, if the jury believed it, the defendant was guilty of burglary in the first degree. There was no proof tending to show that the burglary might have been committed under circumstances which would make it burglary in the second degree under the statute. If his Honor had charged as he was requested it would have been error.’ So, likewise, in S. v. Allen, 186 N. C., 302. A verdict for a lesser degree of the crime charged is logically permissible only when ‘there is evidence tending to support a milder verdict,’ although there are decisions to the effect that if without such supporting evidence a verdict is returned for *496tbe lesser offense it will not be disturbed because it is favorable to tbe prisoner. S. v. Ratcliff, 199 N. C., 9; S. v. Allen, supra."
(4) Did tbe court err in failing and refusing to charge tbe jury that if tbey were not satisfied beyond a reasonable doubt as to tbe guilt of tbe defendant on eacb and every count or any of said counts it would be tbeir duty to acquit tbe defendant and return a verdict of not guilty of anything? As we construe tbe charge as a whole, we think there is no merit in this contention.
Before tbe commencement of tbe arguments, upon inquiry by Mr. Tarlton and in tbe presence of tbe jury, tbe court announced it would charge tbe jury that it may return one of tbe five following verdicts: Guilty of burglary in tbe first degree; Guilty of attempt to commit burglary in tbe first degree; Guilty of breaking and entering a dwelling-house other than burglariously; Guilty of an attempt to break with in: tent to commit a felony; Not guilty. (S. v. Allen, 186 N. C., 302.) “If tbe State has satisfied you beyond a reasonable doubt as to tbe burglary in tbe first degree then you would not consider tbe other counts, but if tbe State has failed to satisfy you beyond a reasonable doubt and your verdict is not guilty of first degree burglary then you will proceed to tbe second count, that is an attempt to commit tbe crime of burglary in tbe first degree. An attempt to commit burglary in tbe first degree is composed of two elements,” etc. Tbe court then charged tbe other elements of tbe crime, with clearness and accuracy, on which defendant could be convicted or acquitted. “Find out what tbe truth is and speak that in your verdict. Your verdict can be one of five: Guilty of burglary in tbe first degree; guilty of an attempt to commit burglary in tbe first degree; if not guilty of that then guilty of breaking or entering other than burglary, with intent to commit a felony or tbe crime of larceny. If not guilty of them, an attempt to break or enter tbe home or dwelling of another with tbe intent to commit a felony therein; or not guilty.”
(5) Did tbe court err in refusing to tell tbe jury of tbe punishment attempt to commit second degree burglary would carry? "We think not.
In S. v. Matthews, 191 N. C., 378 (381), this Court has decided contrary to defendant’s contentions: “Tbe jury has fully discharged its duty, and performed its functions, under tbe law of this State, when its members have sat together, beard tbe evidence, and rendered tbeir verdict accordingly. As tbe judge must not invade tbe true office and province of tbe jury by giving an opinion in bis charge, either in a civil or criminal action, as to whether a fact is fully or sufficiently proven (C. S., 564), so tbe jury must be content to leave with tbe judge tbe grave responsibility imposed upon him to render a judgment, upon tbeir verdict, according to law.”
*497(6) Did the court err when the jury returned a verdict of guilty by saying: “You say that Tommie Walls is guilty of burglary in the first degree of the felony whereof he stands charged?” Was that not an expression of opinion? We think not; it was an inquiry.
The jury announced it was ready to render verdict and the clerk said, “Gentlemen of the Jury, answer to your names,” and called each name separately and each juror answered “Present.” (By the clerk) Q. “Have you agreed on your verdict?” A. “We have.” (By the clerk) “Stand up Tommie Walls; hold up your right hand. Gentlemen of the Jury, look upon the prisoner; what say you as to his guilt of the felony burglary in which he stands indicted in the bill of indictment, Guilty or Not guilty?” A. “Guilty.” (By the court) Q. “So say you all?” A. “Yes.” (By the court) “By your verdict you say that Tommie Walls is guilty of burglary in the first degree of the felony whereof he stands charged?” A. “Yes, sir.” (By the clerk of court) Q. “So say you all?” A. “Yes, sir, we find him guilty of first degree burglary with recommendation of the mercy of the court.”
“Counsel for the defendant requested that the jury be polled, whereupon the clerk, under the directions of the court, called each juror by name, requesting that the'said juror stand; that the clerk asked each juror two questions: (1) ‘Mr. Juror, did you assent to the verdict rendered by your foreman?’ and (2) ‘Do you still assent thereto?’ Each juror answered in the affirmative to each of the two questions propounded, each question being asked and answered separately.” If there was error in the inquiry of the court, it was not prejudicial, as defendant had the jury polled.
The court below in the charge summarized the evidence, set forth the contentions on both sides fairly and impartially, charged that the burden was on the State to satisfy the jury beyond a reasonable doubt as to each aspect on which the defendant could be convicted or acquitted under the bill of indictment or found not guilty, and defined reasonable doubt. The charge was a long one, carefully prepared and gave the law applicable to the facts. In fact, it was so accurate and fair that defendant made no exceptions or assignments of error except those heretofore considered.
The evidence of Peter S. Gilchrist, Jr., was corroborated by other witnesses. He made a brave endeavor to stop the burglar, who attempted to and almost succeeded in killing him. “He left the house by means of an opened back window. I followed him through the back door and out through the back gate, down the alley to the next corner; we live two doors from the corner and I saw him under the street light again but was unable to get him because of loss of blood. ... I *498identified bim from bis face and also from tbe fact tbat be bad blood on bis right band and bis trousers were spattered witb blood. ... I found tbe knife you band me in tbe possession of tbe man I caugbt in tbe bouse tbat morning. I did not pick it up in tbe room but obtained it from tbe man bimself, in tbe dark; I did not see tbe knife until I returned to tbe bouse. There was blood on tbe knife. ... I was in tbe hospital about two or three days and then in bed at borne for another week.”
Tbe defendant, from bis own evidence, showed bimself to be a lawless, desperate man. Tbe night of tbe burglary be was drinking at a beer garden and drank liquor — a half pint and a pint — “sat down on tbe steps of a church on Railroad Street, .. . . came to myself there around 4 o’clock and they arrested me.” Defendant admitted tbat be bad theretofore been convicted (1) of housebreaking; (2) storebreaking; (3) murder, etc. He was tried for burglary in tbe first degree in 1926 and sent to tbe training school, as be was under 16 years of age. In 1931 be was tried for storebreaking and larceny and imprisoned 12 months. In 1932 be was tried for tbe murder of HoAvard Moore and imprisoned for 4 to 7 years.
Tbe fight between Peter S. Gilchrist, Jr., and defendant (by bis own admissions an ex-convict and desperado) was a desperate and dangerous one, after midnight, in tbe Gilchrist home. Few men under such trying circumstances have shown more courage and bravery than tbe younger Gilchrist did in tbe encounter witb this desperate and dangerous man. Tbe testimony of both Peter S. Gilchrist, Jr., and bis father, Peter S. Gilchrist, Sr., was corroborated by facts tbat were pregnant as to identity — fresh blood on defendant’s pants and right band.
The defense is founded mostly on technicalities and refinements. A bill of indictment is never quashed “by reason of any informality or refinement.” C. S., 4623. “Tbe appellant is required to show error, and be must make it appear plainly, as tbe presumption is against bim.” In re Ross, 182 N. C., 477 (478). Tbe whole purpose of tbe law is to administer justice and tbat law and order and orderly government may at all times be maintained. In tbe present case tbe defendant has been given every right and privilege known to tbe law. He has bad a fair trial and been defended by an able counsel.
On tbe whole record, we find no reversible or prejudicial error.
No error.