after stating the facts as above: We are here confronted with (1) the ruling on the motion for a continuance, (2) objections to admissions and exclusions of evidence, and (3) exceptions to the charge.
I. Motion for continuance: In support of the motion for a continuance, counsel for defendant submitted affidavits from Doctors J. F. Owen and Watson Wharton, each affirming his unpreparedness to give expert testimony in the case without first conferring with Dr. Haywood Taylor, toxicologist at Duke University, to whom a specimen of defendant’s blood had been sent for examination and laboratory analysis. It was made to appear that Dr. Taylor was then at Myrtle Beach, S. C., on vacation and was not expected to return before 7 September.
In addition, it was asserted that Dr. John G. Sharplev and his nurse, Mrs. Rebecca Weathers, who had attended the defendant at a hospital in Savannah, Ga., on 22 July, 1948, were material witnesses and could not be reached by subpoena, and that counsel had arranged to take their depositions on 21 August for use in the trial of the cause.
In reply, the solicitor stated that Dr. Haywood Taylor was then at nearby Myrtle Beach, and had advised defense counsel by letter that he would be available at any time, upon request. The solicitor further stated that he had procured a written statement from Dr. John G. Sharpley showing the defendant’s condition when he was in the hospital at Savannah; that he would turn this statement over to counsel for defendant and allow them to offer it in evidence as the sworn testimony *669of both Dr. Sharpley and his nurse, and that he would admit the facts therein stated to be true. It was also asserted that when counsel for defendant gave notice of their intention to take the depositions of these witnesses, the solicitor offered to waive the time and take the depositions immediately or without delay, and notified counsel that he would press for trial at the August Term.
Finally, the solicitor and counsel for the private prosecution stated that they could, with some effort, secure the presence of each of the witnesses for the defendant, and would do so upon request if counsel for defendant were unable to prevail upon them to appear at the trial.
There was no affidavit by defense counsel that they had not had time to prepare for trial.
Upon this showing the ruling on the motion for a continuance was a matter resting in the sound discretion of the trial court. S. v. Gibson, ante, 497; S. v. Strickland, ante, 201; S. v. Rising, 223 N. C. 747, 28 S. E. (2) 221; S. v. Wellmon, 222 N. C. 215, 22 S. E. (2) 437; S. v. Allen, 222 N. C. 145, 22 S. E. (2) 233; S. v. Godwin, 216 N. C. 49, 3 S. E. (2) 347; S. v. Lea, 203 N. C. 13, 164 S. E. 737. It is not seriously contended that any constitutional right belonging to the defendant was infringed in disposing of the matter. S. v. Farrell, 223 N. C. 321, 26 S. E. (2) 322; S. v. Whitfield, 206 N. C. 696, 175 S. E. 93; S. v. Ross, 193 N. C. 25, 136 S. E. 193. Indeed, the record negatives any suggestion of want of due process or unconstitutionality. Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed. 980; Minder v. Georgia, 183 U. S. 559, 46 L. Ed. 328.
In justification of the ruling, it may be noted that Dr. Taylor, whose presence was desired by the defendant, appeared at the trial and was used as a witness, and both Doctors Owen and Wharton gave expert testimony in the case without any suggestion of unpreparedness due to lack of time ór want of preparation. Then, too, Doctor Sharplev’s statement was offered in evidence by the defendant under agreement with the solicitor that it would be accepted as true. Thus the defendant had the benefit of the testimony of all of his witnesses. No hurtful error has been made to appear in respect of the ruling. The exception is not sustained.
II. Exceptions to admissions and exclusions of evidence: While the defendant entered a large number of exceptions to admissions and exclusions of evidence, only four or five questions arising thereon need presently engage our attention. Many of the evidentiary exceptions seem to have been taken out of the abundance of caution. In a number of instances, the record fails to disclose what the excluded evidence would have been, and several objections seem to have been sustained on the ground of repetitiveness.
1. The defendant was 37 years old, a member of a prominent family, weighed about 185 or 190 pounds, -well educated and had considerable *670business interests. The deceased was 28 years old, weighed about 100 pounds, and had been married to the defendant eight years. The State was allowed to show frequent quarrels, separations, reconciliations and ill-treatment of the deceased by the defendant throughout most of their married life. The main cause of all this was the defendant’s excessive use of intoxicating liquors. When sober, his domestic relations were reasonably harmonious. In other words, the prosecution was allowed to paint the defendant before the jury as “not the man that God made, but the man that liquor marred.”
The defendant contends that the court erred in allowing the prosecution to go back over his entire married life with the deceased, and thus bring before the jury his general conduct and character to speak against him, when he had neither gone upon the witness stand nor put his character in issue. This evidence was competent as tending to show malice on the part of the defendant or a settled state of feeling inimical to the deceased, and the decisions so hold. S. v. Allen, 222 N. C. 145, 22 S. E. (2) 233; S. v. Goss, 201 N. C. 373, 160 S. E. 357; S. v. Kincaid, 183 N. C. 709, 110 S. E. 612; S. v. Langford, 44 N. C. 436; S. v. Rash, 34 N. C. 383; 40 C. J. S. 1159. The exception is not sustained.
2. The prosecution sought to show by M. E. Courie, hotel operator at Morehead City, that in 1944, the defendant and his wife spent a week at the beach and fell to quarreling while on their vacation. On cross-examination, the witness stated : “They had been there two or three times before and seemed to be getting along all right.” Then this question : “He gave her every consideration and comfort?” Objection; sustained; exception.
At this point, counsel for defendant made inquiry as follows: “May I inquire if it is permissible for the State to show ill-will on the part of James Creech towards his wife and not permissible for us to show by evidence that he exhibited good-will towards her?” The court: “Yes.”
In the light of the record it is not altogether clear as to just what was intended by the court’s reply. On numerous occasions, prior and subsequent to the inquiry and response, the defendant was allowed to show that, except when drinking, he was kind, considerate and attentive to his wife’s wishes and needs, and that they got along very well together.
Of course, if the court intended to say, and did say, as the defendant contends the answer means, i.e., that the defendant was not permitted to show want of ill-will by evidence of kind treatment, then the response was infelicitous. 40 C. J. S. 1160. However, conceding its infelicity, it does not appear that harmful consequences resulted therefrom. It rvas abundantly established by witnesses on both sides that the disquietude of the defendant’s home came only from the curse of strong drink and tippling. S. v. Capps, 134 N. C. 622, 46 S. E. 730; S. v. Johnson, 48 N. C. 266. *671Indeed, Leonard Woodall, brother of the deceased and a witness for the prosecution, said on cross-examination: “The defendant provided a nice home and furnished it well. . . . Lie showed every affection towards my sister and gave her practically everything a man of his means could give.”
It is not enough to show error in the trial of a cause. To prevail on appeal, it must be made to appear that the appellant’s rights have been injuriously and prejudicially affected. S. v. Beal, 199 N. C. 278, 154 S. E. 604. The party alleging error, “not only has the laboring oar, but the tide is also against him. Error must be shown; it will not be presumed.” Cole v. R. R., 211 N. C. 591, 191 S. E. 353. This burden does not seem to have been successfully carried in respect of the instant exception. Indeed, the defendant’s generous treatment of his wife when sober, was attested by the State’s own witnesses, and no doubt the trial court thought the defendant was only belaboring a matter which was conceded or really not disputed. Without approving the ruling, we do not sustain the exception, as no baneful consequence has been made to appear.
3. The defendant sought to show' by Dr. J. F. Owen, a psychiatrist, that at the time of the homicide he wTas not capable of forming a deliberate and premeditated purpose to kill, with appreciation and understanding of what he was doing. On cross-examination, the prosecution was allowed to ask the witness whether he wras being paid to testify for the defendant. His answer rvas that he made no statement about testifying, but that he charged the defendant $500, and that he would not have been there if he had not been paid. “Q. So, you merely came here in the capacity of a paid employee and a paid witness for the defendant ?” A. “Yes, sir.” Objection; overruled; exception. This examination was permissible to test the bias or partiality of the witness towards the party by whom he was called or introduced. Johnson v. R. R., 163 N. C. 431, 79 S. E. 690; S. v. Beal, supra; Wigmore on Evidence (3d Ed.), Sec. 961. The exception is not sustained.
4. The defendant called his father as a witness to testify concerning his mental condition shortly after the homicide when the defendant stopped to inform him of the killing; also to tell, in a general way, to what extent the defendant had been drinking lately and the effect it had had upon his mind. On cross-examination, the prosecution wras allowed to inquire into the defendant’s business activities, the extent of his farming operations, his management of a large tobacco ■warehouse in Smith-field, etc. Objection; overruled ; exception. This examination was permissible to show the defendant’s mental capacity despite his use of intoxicants. The exception is not sustained.
The prosecution was also allowed to show by the cross-examination of this witness that the defendant had been twice married and twice divorced before his marriage to the deceased. Objection; overruled; exception. *672It must be conceded that the admission of this evidence was an inadvertence. It was neither relevant nor material to the charge upon which the defendant was being tried. It was incompetent, but its prejudicial effect is without support or confirmation on the record. S. v. Perry, 226 N. C. 530, 39 S. E. (2) 460. Cf. Lasater v. State (Tex. Crim. App.), 227 S. W. 949. The defendant was being tried in the county where he had lived from boyhood. He was well known, and no doubt the jury was acquainted with his entire career. Nevertheless, disregarding the common knowledge of the community, the admission of this evidence does not appear to have had any appreciable effect on the verdict. “Admittedly, such evidence was incompetent, though not prejudicial.” Payne v. Com., 255 Ky. 533, 75 S. W. (2) 14. It is not enough for the appellant to show error, and no more. He must make it appear that he was prejudiced thereby. S. v. Perry, supra; S. v. King. 225 N. C. 236, 34 S. E. (2) 3. The ruling is disapproved, but the exception is not sustained for the reason that only a harmless inadvertence has been made manifest.
III. Exceptions to the charge: The defendant entered upon the trial with the common-law presumption of innocence in his favor and with the burden on the prosecution to establish his guilt beyond a reasonable doubt. S. v. Singleton, 183 N. C. 738, 110 S. E. 846. His plea of traverse put his guilt in issue. S. v. Harvey, 228 N. C. 62, 44 S. E. (2) 472. On the trial he neither admitted the killing, nor did he take the witness stand. It was therefore incumbent upon the prosecution to make out the case in all of its elements or to establish the guilt of the defendant beyond a reasonable doubt. S. v. Grass, 223 N. C. 31, 25 S. E. (2) 193. This, the prosecution proceeded to do by first establishing an intentional killing with a deadly weapon. Then evidence was offered tending to show premeditation and deliberation, which, with the presumptions arising from an intentional killing with a deadly weapon, was sufficient to establish the crime of murder in the first degree. S. v. Floyd, 226 N. C. 571, 39 S. E. (2) 598; A. r. Harris, 223 N. C. 697, 28 S. E. (2) 232; S. v. Evans, 198 N. C. 82, 150 S. E. 678.
In this connection there is one exception directed to a portion of the charge which deserves immediate attention. In a single instance, touching the question of presumptions, the court instructed the jury that, “If the State has satisfied you beyond a reasonable doubt that the defendant killed the deceased with a deadly weapon, as I have said, the law presumes that it was done with malice, . . . and (if) you find beyond a reasonable doubt that the defendant intentionally killed the deceased with malice, it would be your duty to return a verdict of guilty of murder in the second degree, subject to the instructions that will be hereafter given you as to responsibility or mental capacity.”
The criticism of this instruction is that the presumption of malice was made to rest on the killing of the deceased by the defendant with a deadly *673weapon without regard to whether the killing was intentional. S. v. McNeill, ante, 377; S. v. Snead, 228 N. C. 37, 44 S. E. (2) 359; S. v. Childress, 228 N. C. 208, 45 S. E. (2) 42; S. v. Debnam, 222 N. C. 266, 22 S. E .(2) 562. The exception is untenable because on several previous occasions the court had stated the presumption could arise only from an intentional killing with a deadly weapon, and the expression, “as I have said,” refers to these previous instances. Moreover, before concluding the instruction the lapsus linguae was corrected. S. v. Davis, 223 N. C. 381, 26 S. E. (2) 869; S. v. Utley, 223 N. C. 39, 25 S. E. (2) 195. The exception is not sustained.
The real debate, however, was over the defendant’s contention, based on evidence offered and elicited by him, that he was in such a state of mental confusion, superinduced by chronic alcoholism, as not only to render him incapable of premeditation and deliberation, but also to deprive him of any moral perception or legal responsibility for his acts.
In submitting this phase of the case to the jury, the trial court followed closely the adjudications on the subject, especially the case of S. v. Murphy, 157 N. C. 614, 72 S. E. 1075, which he evidently had before him when charging the jury. The court’s instructions also reveal an acquaintance and familiarity with and a flavoring of the following cases: S. v. Hairston, 222 N. C. 455, 23 S. E. (2) 885; S. v. Cureton, 218 N. C. 491, 11 S. E. (2) 469; S. v. Alston, 215 N. C. 713, 3 S. E. (2) 11; S. v. Bracy, 215 N. C. 248, 1 S. E. (2) 891; S. v. Edwards, 211 N. C. 555, 191 S. E. 1; S. v. Alston, 210 N. C. 258, 186 S. E. 354; S. v. Walker, 193 N. C. 489, 137 S. E. 429; S. v. Ross, 193 N. C. 25, 136 S. E. 193; S. v. English, 164 N. C. 497, 80 S. E. 72; S. v. Shelton, 164 N. C. 513, 79 S. E. 883; S. v. Allen, 186 N. C. 302, 119 S. E. 504; S. v. Hancock, 151 N. C. 699, 66 S. E. 137; S. v. Kale, 124 N. C. 816, 32 S. E. 892. Indeed, some of the instructions are couched in the very language of the decisions.
It is the law of this jurisdiction that an affirmative defense, c.g., drunkenness or insanity, which partakes of the nature of a plea of confession and avoidance, is to be satisfactorily proved by the defendant unless it arise out of the evidence produced against him. S. v. Swink, ante, 123; S. v. Hammonds, 216 N. C. 67, 3 S. E. (2) 439; S. v. Alston, 214 N. C. 93, 197 S. E. 719; S. v. Keever, 177 N. C. 114, 97 S. E. 727; S. v. Craton, 28 N. C. 178. The onus of showing “justification, excuse or mitigation,” to the satisfaction of the jury, is on the defendant. S. v. Willis, 63 N. C. 26; S. v. Carland, 90 N. C. 668; S. v. Brittain, 89 N. C. 481; S. v. Ellick, 60 N. C. 456 (see note to this case in 3 Anno. Ed.). “Matters in extenuation and excuse, or of discharge by reason of insanity,” are for the defendant. S. v. Jones, 191 N. C. 753, 133 S. E. 81. “All matters of excuse or mitigation devolve upon the prisoner.” S. v. Rollins, 113 N. C. 722, 18 S. E. 394.
*674Speaking to the question in S. v. Foster, 172 N. C. 960, 90 S. E. 785, Walker, J., delivering tlie opinion of the Court, said : “That the burden is upon the prisoner to satisfy the jury by proof of any matters of justification, excuse, or mitigation has been too long settled to be now questioned. The jury were instructed that the burden was upon the State to establish beyond a reasonable doubt that the prisoner killed the deceased with premeditation and deliberation. The charge was correct and in accordance with the authorities.”
Finally the whole matter in respect of the burden of proof and the burden of satisfaction, where insanity or mental debility is interposed as a defense, is thoroughly discussed in the case of S. v. Harris, 223 N. C. 697, 28 S. E. (2) 232, and it would only be a work of supererogation to restate it here. The presumption that the accused was sane and responsible for his acts persists until the contrary is shown to the satisfaction of the jury. Therefore, if the jury are left in doubt as to the sanity or responsibility of the accused, the presumption prevails. S. v. Smith, 77 N. C. 488.
As a dernier ressorl the defendant says that while no one of his exceptions, standing alone, may be sufficient to work a new trial, nevertheless taken in their totality, they make it quite clear that the scales of justice were weighted against him, S. v. Hart, 186 N. C. 582, 120 S. E. 345, and that in no event should a case of this importance be upheld on the doctrine of harmless error.
The position might prevail but for the conduct and declarations of the defendant on the night of the homicide which clearly revealed his stubborn purpose and unbending will to kill the deceased, even over the efforts of those in the house to protect her, and an immediate consciousness' of wrong which prompted the defendant to seek the sheriff’s office, knowing full well that as between himself and the officers it was only a question as to who would make the call first. At any rate, these are the overshadowing facts of the record, and the jury has found them to be true. Not until the defendant reached the jail did he make any self-serving declaration. He then, for the first time, said to the jailer, “I am as crazy as hell.” This was his last comment on the subject so far as the record discloses.
True it is, that the atrocity of the defendant’s conduct was a circumstance from which opposite conclusions were sought to be drawn; the one that it exhibited a mind fatally bent on mischief; the other that it revealed a diseased intellect. The jury attributed it to the former.
The test of responsibility is the capacity to distinguish between right and wrong at the time and in respect of the matter under investigation. S. v. Potts, 100 N. C. 457, 6 S. E. 656; S. v. Brandon, 53 N. C. 463. He who knows the right and still the wrong pursues is amenable to the criminal law. S. v. Jenkins. 208 N. C. 740, 182 S. E. 324. On the other hand, if “the accused should be in such a state of mental disease as not *675to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing wrong,” the law does not hold him accountable for his acts, for guilt arises from volition, and not from a diseased mind. S. v. Haywood, 61 N. C. 376.
We are aware of the criticism of this standard by some psychiatrists and others. Still, the critics have offered nothing better. It has the merit of being well established, practical and so plain “that he may run that readeth it.” Hab. 2 :2. Moreover, it should be remembered that the criminal law applies equally to all sorts and conditions of people. It ought to be sufficiently clear to be understood by the ordinary citizen.
The conclusion is reached that no reversible error has been made to appear. Hence, the verdict and judgment will be upheld.