.The defendant’s case on appeal is defective in several respects in not complying, with tbe Rules of Practice in tbe Supreme Court, secs. 19 (3), 21, 27%, 28 — 192 N. C., 837. This being a criminal case with penalty of death, we will consider defendant’s contentions.
At tbe close of tbe State’s evidence and at tbe close of all tbe evidence, N. C. Code of 1939 (Micbie), sec. 4643, tbe defendant made a motion in tbe court below for judgment of nonsuit. Tbe motions were denied and in this we can see no error.
We repeat again, tbe well settled law in this jurisdiction: In S. v. Lawrence, 196 N. C., 562 (564), it is written: “On motion to dismiss or judgment of nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe State, and it is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom. 'An exception to a motion to dismiss in a criminal action taken after tbe close of tbe State’s evidence, and renewed by defendant after tbe introduction of bis own evidence does not confine tbe appeal to tbe State’s evidence alone, and a conviction will be sustained under tbe second exception if there is any evidence on tbe whole record of tbe defendant’s guilt.’ S. v. Earp, ante, at p. 166. See S. v. Carlson, 171 N. C., 818; S. v. Sigmon, 190 N. C., 684. Tbe evidence favorable to tbe State is considered — defendant’s evidence is discarded. S. v. Utley, 126 N. C., 997. Tbe competency, admissibility and sufficiency of evidence is for tbe court to determine; tbe weight, effect and credibility is for tbe jury. S. v. Utley, supra; S. v. Blackwelder, 182 N. C., 899.” S. v. Coal Co., 210 N. C., 742 (746).
Defendant admitted that be shot bis wife, Bertha Brown, three times, either of which wounds could produce death. He claimed on tbe trial, when a witness, that tbe shooting took place in a scuffle with bis wife and be bad no intention of shooting her. On cross-examination, be stated, “We were scuffling, and my band might have been on tbe trigger, it would have to have been, but I did not know it was on tbe hammer each time before it fired.” He told Chief Lente, “It wasn’t no accident, I shot her myself.” He told Sbuford (who asked him), “How come you *421to shoot that woman?” “She did not treat me right, if I had to do it over I would do it again.” William Cox, his employer, testified that defendant told him, “I circled around back and saw her in bed with this man Hewitt,” and then he said, “I came up to the plant and stayed up there all night and went back down there Sunday morning about eight o’clock and we got in the argument and I killed her and I meant to kill her.” The evidence is plenary to be submitted to the jury as to murder in the first degree.
The court below, on this aspect, under the allegations in the bill of indictment, charged: “There are three degrees of unlawful homicide: Murder in the first degree, murder in the second degree, and manslaughter. Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. Premeditation means thought beforehand, for some length of time, however short. Deliberation means that the act is done in a cool state of the blood, it does not mean brooding over it or reflecting upon it for a week, or 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 the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence or a violent passion suddenly aroused by some lawful or just cause, or legal provocation. When we say a killing must be accompanied by premeditation and deliberation it is meant there must be a fixed purpose to kill which preceded the act of killing for some length of time, however short, although the manner and length of time in which the purpose is formed is not very material. If the purpose to kill was formed simultaneously with the killing, then there is no premeditation and deliberation and the homicide would not be murder in the first degree.” S. v. Burney, 215 N. C., 598 (614).
In S. v. Steele, 190 N. C., 506 (511-12), Varser, J., for the Court, said: “The requirement, in first degree murder, in order to constitute 'deliberation and premeditation’ does not require any fixed time beforehand. These mental processes must be prior to the killing, not simultaneous, 'but a moment of thought may be sufficient to form a fixed design to kill,’ ” citing authorities. S. v. Hammonds, 216 N. C., 67 (75) ; S. v. Hudson, ante, 219 (232-3).
The court below charged accurately the law of murder in the second degree, manslaughter and the phase of not guilty as to accidental killing; defined reasonable doubt and placed the burden of proof on the State in regard to first degree murder; charged the law of voluntary drunkenness. The charge covered every aspect of the law applicable to the facts. It was complete and accurate and gave the contentions fairly and impartially for both sides.
*422Tbe defendant contends that the court below should have set aside the verdict as being contrary to the weight of the evidence. This court has consistently held that this is a discretionary matter and not reviewable on appeal. S. v. Caper, 215 N. C., 670 (671), and cases cited.
The court below, in the exercise of its discretion, denied the defendant’s motion to set aside the verdict and its decision on this matter is final.
The defendant made a motion in arrest of judgment. The defendant mates only a formal motion and does not undertake in the record to specify on what particular alleged defect his motion is based. A motion in arrest of judgment must be based on some matter which appears, or for the omission of some matter which ought to appear, on the face of the record. S. v. McKnight, 196 N. C., 259 (260), and cases cited.
There is no defect appearing on the face of the record such as would entitle the defendant to have the judgment arrested and his motion was, therefore, properly denied. S. v. Linney, 212 N. C., 739 (741), and cases cited.
The inadvertence of the court below in quoting the evidence was called to the attention of the court by defendant and we think was sufficiently corrected.
The court charged the jury: “Gentlemen of the jury, the court may be in error as to that; you will remember the evidence as to that, you will not take the court’s recollection. Counsel may be correct in that, the court is not certain as to that, but you will rely upon your recollection as to what the evidence was as to that.” If defendant wanted exactly what was said, he could have requested the court to review the evidence on that aspect. If error, it was harmless and not prejudicial.
We have considered the exceptions, although not in compliance with the Rules of this Court. There is no exception or assignment of error to the charge or the evidence.
The whole matter of appeals to this Court, as a guide to the legal profession, is set forth in Rawls v. Lupton, 193 N. C., 428. This case has been repeatedly approved. In S. v. Parnell, 214 N. C., 467 (468), we find: “Five assignments of' error, all directed to the charge, are attached to the ‘case on appeal’ — considering it now as ‘deemed approved’ —but these assignments are based on no exceptions. Rawls v. Lupton, 193 N. C., 428, 137 S. E., 175. Only exceptive assignments of error are availing on appeal. In re Beard, 202 N. C., 661, 163 S. E., 748; S. v. Freeze, 170 N. C., 710, 86 S. E., 1000.”
In the case of S. v. Bittings, 206 N. C., 798 (800), is the following: “If this were not a capital case it would be necessary to affirm the judgment on motion of the Attorney-General for failure properly to present exceptive assignments of error. S. v. Freeze, 170 N. C., 710, 86 S. E., *4231000; S. v. Kelly, ante, 660. . . . No exceptions were taken to the admission or exclusion of evidence and none properly to the charge. There was a formal motion to set aside the verdict and one in arrest of judgment, to which exceptions were entered, but otherwise the assignments of error are without exceptions to support them.”
In this case there are only four formal exceptions contained in the record and no assignments of error. ¥e have examined the record carefully. We think the case was tried in accordance with the law in this jurisdiction. The charge was able and covered every aspect of law applicable to the facts.
On the whole record we can find no prejudicial error.