(1) The exceptive assignment principally pressed on tbis appeal is the refusal of the court to allow defendant’s motion for judgment as of nonsuit on the first degree murder charge made in compliance with the statute. C. S., 4643. The motion challenges the sufficiency of the evidence to show premeditation and deliberation beyond a reasonable doubt. S. v. Bittings, 206 N. C., 798, 175 S. E., 299, and cases cited.
It is pertinent, therefore, to refer to principles applicable to the case in hand.
Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. C. S., 4200. S. v. Payne, 213 N. C., 719, 197 S. E., 573, and cases cited.
The intentional killing of a human being with a deadly weapon implies malice and, if nothing else appears, constitutes murder in the second degree. S. v. Payne, supra, and cases cited.
“The additional elements of premeditation and deliberation, necessary to constitute murder- in the first degree, are not presumed from a killing with a deadly weapon. They must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree can be rendered against the prisoner.” S. v. Miller, 197 N. C., 445, 149 S. E., 590; S. v. Payne, supra.
“Premeditation means 'thought beforehand’ for some length of time, however short.” S. v. Benson, 183 N. C., 795, 111 S. E., 869, at p. 871; S. v. McClure, 166 N. C., 321, 81 S. E., 458; S. v. Payne, supra, 197 S. E., 579, and cases cited.
“Deliberation means that the act is done in cool state of blood. It does not mean brooding over it or reflecting upon it for a week, a day or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation.” S. v. Benson, supra; S. v. Payne, supra.
Evidence of threats are admissible and may be offered as tending to show premeditation and deliberation, and previous express malice, which are necessary to convict of murder in the first degree. S. v. Payne, supra, and cases cited.
“General threats to kill not shown to have any reference to deceased are not admissible in evidence, but a threat to kill or injure someone not definitely designated are admissible in evidence where other facts adduced give individuation to it.” S. v. Shouse, 166 N. C., 306, 81 S. E., 333; S. v. Payne, supra.
“The manner of the killing by defendant, his acts and conduct attending its commission, and his declaration immediately connected therewith, *254were evidence of express malice.” S. v. Robertson, 166 N. C., 356, 81 S. E., 689; S. v. Cox, 153 N. C., 638, 69 S. E., 419.
“In determining tbe question of premeditation and deliberation it is proper for tbe jury to take into consideration tbe conduct of tbe prisoner, before and after, as well as at tbe time of, tbe homicide, and all attending circumstances.” Stacy, C. J., in S. v. Evans, 198 N. C., 82, 150 S. E., 678.
Applying these well settled principles, tbe evidence in tbe case at bar is sufficient to be submitted to tbe jury on tbe first degree murder charge. Tbe threat at tbe scboolbouse, though general, was given individuation when tbe defendant, within two and a half hours after making it, did tbe very thing be threatened to do — killed a girl. And it is pertinent both on malice and on premeditation and deliberation. His declaration and conduct immediately after committing tbe act manifests a coolness worthy of consideration by tbe jury. Tbe statement to tbe officers, “I killed her because I loved her, and I told her if I ever caught her I was going to kill her” is expressive of specific threat. Then, too, tbe atrocious manner in which be cut her throat is evidence of express malice and a fixed purpose to make the deed complete.
(2) Did tbe court below commit error in failing to charge tbe jury on tbe presumption of innocence of defendant. This question has been decided adversely to defendant in tbe cases of S. v. Boswell, 194 N. C., 260, 139 S. E., 374; S. v. Rose, 200 N. C., 342, 156 S. E., 916; and S. v. Herring, 201 N. C., 543, 160 S. E., 891. In tbe charge to the jury, tbe court below defined murder in tbe second degree, and murder in tbe first degree in accordance with tbe well settled law of this State. Tbe court clearly placed tbe burden of proof upon tbe State to satisfy tbe jury from tbe evidence beyond a reasonable doubt that tbe defendant prior to tbe time of tbe killing formed a purpose to kill tbe deceased, and that such design to kill was formed with deliberation and premeditation, and that in pursuance of such design tbe defendant killed tbe deceased. Tbe court fully defined reasonable doubt. No exception is taken to any part of tbe charge on tbe law so declared by tbe court.
(3) There is exception to this portion of tbe charge: “And I charge you that in order for this plea of insanity to be a complete defense in this case, you must find that tbe prisoner at tbe time be killed deceased was incapable of having a criminal intent.” This is part of a sentence in which tbe court correctly charged on tbe burden of proof upon this plea. It is contended that tbe portion to which exception is taken is an expression of opinion forbidden by C. S., 564. This position is not well taken. It is settled law in this State that when, in a homicide case, tbe defendant interposes a plea of insanity, be says by this plea that be did tbe killing, but tbe act is one for which be is not responsible. S. v. *255 Terry, 173 N. C., 761, 92 S. E., 154. Tbis is an affirmative defense. S. v. Alston, ante, 93.
(4) Exception, is taken to wbat is contended by defendant to be a misstatement of tbe evidence by tbe court in stating a contention of tbe State. If incorrectly stated, tbe matter was not called to tbe attention of tbe court at tbe time, and cannot be beld for prejudicial error. S. v. Burton, 172 N. C., 939, 90 S. E., 561; Sorrells v. Decker, 212 N. C., 251, 193 S. E., 14.
After most careful consideration, we are of opinion tbat tbe case bas been fairly tried, and we find
No error.