A painstaking scrutiny of the record, and a careful consideration of the questions presented in brief of counsel for defendant fail to disclose prejudicial error.
The first exception relates to the admission in evidence of photographs identified as having been taken at one o’clock on the morning of 14 December at the scene where the body of deceased was found, one the “way it was when we got there” — and the other after he was turned over “to get a facial picture of him to see if he could be definitely identified.” *519Tbe seventh exception is directed to the action of the solicitor in showing the photographs to the jury during his argument. The record shows that when these photographs were admitted in evidence the court instructed the jury that they were not offered as substantive evidence, but only for the purpose of illustrating the testimony of the witness, if the jury should find that they do illustrate it. Then, again, in his charge the court repeated the instruction, and further expressly charged that the jury should not consider them as substantive evidence as “tending to prove any of the main facts at issue.” For the purpose for which the photographs were offered and received in evidence, they are competent. The record fails to show that the solicitor used them for any other purpose. Hence, their admission in evidence for the purpose stated is in accord with well settled rule of law in this State. Pickett v. R. R., 153 N. C., 148, 69 S. E., 8; S. v. Jones, 175 N. C., 709, 95 S. E., 576; S. v. Lutterloh, 188 N. C., 412, 124 S. E., 152; Honeycutt v. Brick Co., 196 N. C., 556, 146 S. E., 227; S. v. Perry, 212 N. C., 533, 193 S. E., 727; S. v. Holland, 216 N. C., 610, 6 S. E. (2d), 217.
Defendant next contends that the court erred in limiting the jury to the rendition of one of two verdicts, “Guilty of murder in the first degree” or “Not G-uilty.” Exceptions 8 and 9.
It is provided in 0. S., 4200, that “A murder . . . which shall he committed in the perpetration, or attempt to perpetrate any . . . robbery, ... or other felony, shall be deemed to be murder in the first degree and shall be punished by death.” Speaking thereto in the case of S. v. Spivey, 151 N. C., 676, 65 S. E., 995, Manning, J., for the Court, said: “Where the evidence tends to prove that a murder was done, and that it was done by means of poison, lying in wait, imprisonment, starving, torture, or which has been committed in perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, and where there is no evidence and where no inference can fairly be deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of ‘guilty of murder in the first degree/ if they are satisfied beyond a reasonable doubt, or of ‘not guilty.’ If, however, there is any evidence or if any inference can be fairly deduced therefrom, tending to show one of the lower grades of murder, it is then the duty of the trial judge, under appropriate instructions, to submit that view to the jury. It becomes the duty of the trial judge to determine, in the first instance, if there is any evidence or if any inference can be fairly deduced therefrom, tending to prove one of the lower grades of murder.” See, also, S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Donnell, 202 N. C., 782, 164 S. E., 352.
*520In tbe present case, if tbe evidence for tbe State is to be believed, tbe defendant, in tbe perpetration of, or in an attempt to perpetrate a robbery of C. C. Ritter, sbot and killed bim. Tbe homicide so committed is murder in tbe first degree. C. S., 4200; S. v. Logan, 161 N. C., 235, 76 S. E., 1; S. v. Miller, 197 N. C., 445, 144 S. E., 590; S. v. Donnell, supra; S. v. Satterfield, 207 N. C., 118, 176 S. E., 466; S. v. Green, 207 N. C., 369, 177 S. E., 120; S. v. Alston, 215 N. C., 713, 3 S. E. (2d), 11; S. v. Kelly, 216 N. C., 627, 6 S. E. (2d), 533.
If, on tbe other band, tbe testimony of tbe defendant, as witness in bis own behalf, is to be believed, tbe killing of C. 0. Ritter was done by John Henry Thomas, while be and defendant, as co-conspirators in a preconceived plan to rob C. C. Ritter, were perpetrating or attempting to perpetrate a robbery of bim. This too made tbe homicide murder in tbe first degree, and both of them would be guilty. S. v. Bell, 205 N. C., 225, 171 S. E., 50; S. v. Stefanoff, 206 N. C., 443, 174 S. E., 411; S. v. Green, supra.
There is no evidence of a lesser degree of homicide. S. v. Spivey, supra; S. v. Myers, 202 N. C., 351, 162 S. E., 764; S. v. Ferrell, 205 N. C., 640, 172 S. E., 186; S. v. Gosnell, 208 N. C., 401, 181 S. E., 323.
Hence, there is no error in limiting tbe jury to one of two verdicts, murder in tbe first degree or not guilty. S. v. Donnell, supra; S. v. Satterfield, supra.
Defendant further complains that in addition to charging tbe jury on tbe subject of homicide committed while in tbe perpetration, or attempt to perpetrate a robbery, tbe court went further and charged on tbe subject of “a willful, deliberate and premeditated killing,” and still limited tbe jury to one of two verdicts as hereinbefore stated. Even so, as was similarly stated by this Court in S. v. Logan, 161 N. C., 235, 76 S. E., 1, bis honor might well have omitted from bis charge all reference to “premeditation and deliberation,” for tbe entire evidence in tbe record shows that C. C. Ritter was slain either by defendant as principal, or by Jobn Henry Thomas as co-conspirator of defendant, acting in a concerted plan with defendant, in tbe perpetration of, or attempting to perpetrate a robbery of C. O. Ritter. See, also, S. v. Alston, supra.
Defendant further contends that tbe court should have instructed tbe jury on tbe question as to whether defendant was mentally capable of committing tbe crime. There is no evidence that tbe defendant was not capable of knowing and understanding what be was doing. Compare S. v. Murphy, 157 N. C., 614, 72 S. E., 107; S. v. Alston, supra. In fact, it appears from tbe charge of tbe court below that defendant did not then undertake to exculpate himself upon tbe ground of insanity. Yet tbe court was liberal in charging tbe jury as to bis contentions in respect to all that tbe evidence tends to show as to tbe blow on bis bead, *521as well as to tbe circumstances under which he was reared by an aged grandmother, and as to his condition in life.
There are other exceptions appearing in the record which are not brought forward in defendant’s brief and are deemed abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 213 N. 0., 808. However, we find no merit in them.
In the judgment below there is
No error.