The exceptions and assignments of error are as follows: (1) The defendant, before the selection of a jury, filed in writing a plea in abatement based on the exclusion of qualified members of the Negro race from the jury box. We think there is no error in the denial of the plea on this record. (2) The denial of defendant’s plea for a continuance. In this we can see no error.
The court below on the plea in abatement being filed by defendant, made the following entry in the record: “This cause coming on to be heard before the undersigned judge, the following facts are found: That the defendant was indicted by the grand jury of New Hanover County of murder in the first degree, true bill for same being returned by the grand jury on the morning of the 14th of November, and the court being apprised of the fact that the defendant was without counsel, and without means to provide private counsel for his defense, and being informed by the solicitor for the State that he would ask for a verdict of guilty of murder in the first degree, thereupon, appointed as counsel for the defendant two reputable lawyers of the New Hanover County Bar, to wit: Alan A. Marshall and W. F. Jones, and informed them of their appointment, the same being accepted. The court further finds that at 2:30 p.m., on the 14th day of November, 1938, the defendant was arraigned in open court, and for his plea to the bill of indictment entered a plea of not guilty, which plea was made in his own proper *104person, and by bis attorneys, eacb standing by bis side. Tbe court further finds as a fact tbat tbe cause was then set for trial at 2 :30 tbe .following day, Tuesday tbe 15tb, and upon tbe agreement of counsel for tbe State and for tbe defense tbat seventy-five names would be sufficient to constitute a special venire to serve as jurors in tbis case in addition to tbe regular panel, if sucli regular panel should become exhausted, and thereupon a child under tbe age of ten years, to wit, Horace Thomas Chinnis, drew tbe names from tbe jury box of tbe county in accordance with tbe law, in tbe presence of tbe defendant and of bis counsel; tbat at tbe commencement of tbe afternoon session, 2:30 p.m., November 15, 1938, tbe defendant’s counsel filed a plea in abatement, which plea in abatement is supported by an affidavit signed by Thomas Woody. Tbe court further finds as a fact tbat tbe affidavit supporting tbe plea of abatement does not disclose to tbe court tbat there are not now in tbe jury box of New Hanover County tbe names of colored citizens of tbe county, but, to tbe contrary, shows tbat two years ago a number of names of tbe Negro race were placed in such jury box, and tbe court finds tbat tbe names of members of tbe Negro race of New Hanover County have been, within the last two years, placed in tbe jury box of New Hanover County. Tbe motion of plea in abatement is not allowed by tbe court, in its discretion, and tbe same is hereby overruled.”
In S. v. Walls, 211 N. C., 487 (494), speaking to tbe subject, it is said: “Tbe exclusion of all persons of tbe 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 tbe equal protection of tbe laws in violation of tbe Constitution of N. C., and tbe United States. S. v. Peoples, 131 N. C., 784.” Strauder v. W. Va., 100 U. S., 303, 25 L. Ed., 664; Neal v. Del., 103 U. S., 370, 26 L. Ed., 567; Norris v. Ala., 294 U. S., 587, 55 S. Ct., 578 (1933) (second Scottsboro case).
There was some evidence to sustain tbe above finding of fact made by tbe court below. It has been generally held by tbis court tbat tbe findings of fact are conclusive on appeal in tbe absence of gross abuse. S. v. Walls, supra, p. 494. The Walls case, supra, on appeal to tbe U. S. Supreme Court, was dismissed, 302 U. S., 635, 58 S. Ct., 18.
In Thomas v. Texas, 212 U. S., 278, 53 L. Ed., 512, it is said: “Whether such discrimination was practiced in tbis case was a question of fact and tbe determination of tbat question adversely to plaintiff in error by tbe trial court and by tbe court of criminal appeals was decisive so far as tbis Court is concerlred, unless it could be held tbat tbis decision constituted such abuse as amounted to an infraction of tbe Federal Constitution.”
Tbe following motion was made by defendant on 15 November, 1938: “Now comes tbe defendant, James Henderson, charged with tbe crime *105of murder in the first degree, through his counsel, Alan A. Marshall and W. F. Jones, and respectfully moves this honorable court that the trial of this cause be continued, for that: The defendant was apprehended and placed in custody on or about the 8th day of November, 1938, and since that time has been held incommunicado by the law enforcement officers of the city of Wilmington and New Hanover County and the State of North Carolina, and that shortly after the 8th day of November, 1938, the said defendant was removed to the State Prison in Ealeigh, North Carolina, and was confined there until the 14th day of November, at which time he was returned to the city of Wilmington, North Carolina, arriving in Wilmington, North Carolina,' in the custody of several officers at or about noon on the 14th day of November, 1938, and that about 10:30 a.m., on the 14th day of November, 1938, the Honorable W. H. S. Burgwyn, judge presiding, informed Alan A. Marshall that he was going to appoint the said Marshall to represent the said defendant and requested him to be present at 2:30 on that day, at which time the defendant would be arraigned, whereupon the said Alan A. Marshall prayed the court to appoint another attorney to assist him in the presentation of the defense of the said James Henderson, which prayer was granted by the court; that at or about 2:30 on the 14th day of November, Alan A. Marshall and W. F. Jones presented themselves before the court, and for the first time saw the defendant, James Henderson, in court. The defendant was arraigned and pleaded ‘Not guilty/ whereupon the court instructed the court reporter to let the records show that Alan A. Marshall and W. F. Jones were thereby appointed to represent the defendant and as counsel for the defendant have not had sufficient time in which to discuss the case with the client to investigate the facts and the law applicable to the cause, and, in brief, have not, in their opinion, had sufficient time in which to properly prepare the case for the defendant and present his defense in an adequate way as the said defendant is entitled to by law.”
“The court finds as a fact that immediately after the arraignment of the defendant the court requested the solicitor for the State to give to the counsel for the defendant the names of each and every witness for the State whom they might have a desire to examine. Whereupon, the solicitor did give to the counsel for the defendant the names of the witnesses, and other evidence in writing which he proposes to introduce against the defendant, and the court now asks the defendant’s counsel if there is anyone in the State of North Carolina they desire as a witness in this case. (Mr. Marshall) : ‘So far as we know there is no specific witness, or no specific information. Therein lies the point of our motion for continuance. We feel, and respectfully submit to your Honor, that we have not had time (barely twenty-four hours as a matter *106of fact) to talk, first to this man; to talk to the witnesses whom he has given us, and to delve into the law applicable to the case, and attempt to present his case in an adequate way. Lack of time for the disclosure of information materially goes to-the soul of our motion.’ (Court:) Upon the completion of the selection of the jury tonight, if you desire further time, I will continue the trial of the case until morning for you. . . . Let the record show that after the jury has been selected, sworn and impaneled, counsel for the defendant signified their readiness to proceed.”
“This Court has wisely left the matter in the sound discretion of the court below unless there is ‘palpable abuse’ or ‘gross abuse’ of this discretion. This Court in a most thorough opinion, citing a wealth of authorities, said in S. v. Sauls, 190 N. C., 810 (813) : ‘It was subsequently held in a number of decisions that the refusal to continue a case rests in the judge’s discretion upon'matters of fact which this Court has no power to review. ... In other cases it is held that while the exercise of discretion must be judicial and not arbitrary it is not subject to review unless “the circumstances prove beyond doubt hardship and injustice,” . . . “palpable abuse” ... or “gross abuse” . . .’ S. v. Rhodes, 202 N. C., 101 (102-3); S. v. Lea, 203 N. C., 13 (24); S. v. Garner, 203 N. C., 361; S. v. Banks, 204 N. C., 233 (231); S. v. Whitfield, 206 N. C., 696 (698).” S. v. Godwin, ante, 49.
The record discloses that the court below was right in its discretion in refusing a continuance. The defendant confessed to the qrime and had numerous witnesses to testify as to his drinking that night. If the case had been continued it would not have advantaged defendant. The charge of the court below is not in the record and the presumption of law is that the court fairly charged every phase of the law applicable to the facts, including that of intoxication affecting defendant’s capacity to form sufficient intent to kill the deceased with premeditation and deliberation with malice aforethought. The defendant in his testimony said, “The officers explained she was hit and I said, ‘I must have did it.’ I didn’t deny hitting her and I still don’t.” The facts in the record against the defendant are sordid and repulsive — all the evidence indicates that while drinking defendant raped the deceased and brutally murdered her with a lug wrench, wounds were on her head and elsewhere on her person. If the jury had been composed entirely of persons of the Negro race, from the evidence the verdict could not have been otherwise.
On this record there is no prejudicial or reversible error.
No error.