(after stating the facts). Prior to the argument in the case, the counsel of the prisoners moved the Court for a new trial, upon the ground of newly-discovered testimony. The motion is disallowed, for the reason this Court does not-entertain such a motion. It was so expressly held at this term of the Court, in the case of State v. Starnes, upon a similar motion.
The prisoners are charged with the murder of John A. Cheat-ham, in the city of Raleigh, on the night of the 10th of June, 1885. After arraignment, each of the prisoners moved for a severance of the trial. The motion was denied by the Court, and the prisoners both excepted to the ruling. The exception cannot be sustained, for the severance of the trial was a matter of sound discretion, to be exercised by the Court. State v. Smith, 2 Ired., 402; and 1 Whar. Cr. Law, §433.
By consent, a special venire of two hundred men were drawn from the jury-box, under §1739 of The Code. When the first person’s name was drawn from the box, he was challenged by the defendants, and on his voir dire was asked the following questions: “Have you a cause pending and at issue in the Superior Court of Wake county ? Have you paid your taxes for the last preceding year? Have you served on a jury within the last two years?” To each of these questions, the Solicitor for the State objected, and the questions were ruled out by the Court, and the juror tendered. To this ruling the prisoners excepted. There were several others called on the list, who were passed by the Solicitor to the prisoners, and the same questions asked, with like results. Neither of the prisoners, when the jury was completed, had availed themselves of the twenty-three challenges to which, by law, they are entitled, the prisoner Gooch having challenged peremptorily only thirteen, and Smith only six.
The question of practice here raised by the exceptions of the prisoners, was decided at this term of the Court, in the case of State v. Hensley. There the Court held, “ that the right of challenge is intended to secure a fair and impartial trial, and to that end, to exclude from the jury, persons objectionable for one or *1007another cause. It is no part of the purpose of the right of challenge, to afford the prisoner opportunity to select particular jurors, most likely to acquit, or give him undue advantage. He has no right to select and have his own choice of jurors, he has only the right to object to twenty-three, without assigning any cause, and indefinitely, for cause allowed by law to be good. He only had the right to except to objectionable jurors, and to have an unobjectionable jury. The conclusive presumption is, that such a jury was obtained, because the prisoner accepted jurors of the panel tendered, until the jury was completed, while he yet had the right to challenge four peremptorily.” The rule to be deduced from this decision is, that although the proper challenges by the prisoner of the same panel may be denied him by the .Court, it is no ground for a venire de novo, unless he has exhausted his peremptory challenges, for unless that contingency occurs, he is not prejudiced, for he is presumed, by not exhausting his peremptory challenges, to have what he considers an unobjectionable jury. There was, therefore, no error in the ruling of the Court in this particular.
We come now to consider the exceptions taken by the prisoner, upon the omission or rejection of evidence by the Court, and there were such a vast number of exceptions taken on the trial, many of which were too trivial for consideration, and many others, after being first taken, were afterwards avoided in the progress of the trial, by admitting the evidence to which they were taken, that we feel some distrust, lest in the confusion of the evidence and exceptions, we may overlook something that may be of importance.
In reviewing the evidence and the exceptions thereto, wé shall only notice those that were taken to evidence that was not subsequently admitted^ and consider only such of the instructions asked, as were refused by the Court.
On the examination of James F. Cheatham, the State proposed to prove by him, the nature and character of the wounds he had before stated he had received. The evidence was objected to by *1008the prisoners, but received by the Court, as part of the res gestos, and to show the violence of the transaction. The evidence we think, was properly admitted upon both grounds.
Chamblee, a witness for the State, testified, that on the evening of the homicide, about sunset, he saw the prisoners together, about 35 yards from Cheatham’s store, and upon the witness being asked what they were doing, the prisoners objected; but the Court admitted the evidence, and the witness stated that Gooch had a knife, about two and one-half inches long, cutting at Smith, as if he was trying to cut him, and Smith was knocking at him with his fist; “they seemed to be fooling.” He saw Gooch and Smith together nearly every evening about that time. The evidence was admissible. It was competent to show- when and what the prisoner were doing that evening, and it was admissible to show that Gooch had a knife that evening, as evidence was offered by the defence, tending to show that he had none.
Wesley Hamilton, testimony on the part of the State, as to the declarations of the two prisoners regarding the deceased, and their accounts at his store, was objected to by both the prisoners. The testimony was competent, to show the dissatisfaction of the prisoners with their accounts, and as tending to support the contention of the State, that they bore a grudge against the deceased on that account.
They then asked the same witness the question: “Have not you known it to be frequently to be the case, that the Cheathams’ have presented to the city hands, accounts double what was really due.” This question was objected to by the State, and ruled out by the Court. The defence insisted that the question was admissible, to rebut the testimony of Robert Sanders, who had testified that he heard Gooch, the summer before, say to Smith, that if Cheatham “ messed” with him as he did with other hands, he would kill him. It was insisted that it was offered to explain what was meant by “ messing,” to rebut the disputing the account, by which the State claims to show malice, and to show that the condition named in the threat testified to by Sanders, never existed.
*1009We do not see how the refusal to admit the answer to the question could prejudice the prisoners, for evidence was offered by the prisoners tending to show deceased kept false accounts, and was a man who dealt hardly with his customers, and it could only have the effect of showing that the prisoner's may have had just ground of complaing of their accounts, and was calculated to engender the ill feeling which the State alleged they entertained towards the deceased on that account. Such evidence, it seems to us, only tended to strengthen the allegation of the State in that particular, and was in fact prejudicial to the defence. The answer to the question, so far from showing that the condition contended for on the trial never existed, would tend to show that it did there exist. It was, if the deceased, “messed” with him, as he did with others, that is, make out a false account against him, he would kill him, for both the prisoners complained of their accounts, and alleged them to be unjust.
Questions were put by the prisoners to the witness Lambeth, the City Clerk, as to the temper of the deceased towards the prisoners, and whether he seemed to be mad with Smith, the day of the homicide, and did he know from anything he said that day, that he was mad with Smith. These questions were ruled out by the Court, and the prisoners excepted.
We are unable to see how the temper or anger of the deceased towards the prisoners, can be relevant to the question of their guilt or innocence. In a case of homicide, the question is, was the act of killing done by the prisoners with malice, and that question can in no way be affected by the fact that the deceased bore malice towards the prisoner. Besides, if the questions were material, they were fully answered by the witness Ellis, who stated that the deceased was angry with Smith, and he communicated what the deceased said on the same day to Smith, and that night advised him not to go to the Cheathams’.
Ford Taylor, a witness for the State, was asked several questions by the defence, for the purpose of attacking the character of the deceased, in relation to his mercantile transactions. They *1010were ruled out, on objection by the Solicitor, and properly so, for the moral character of the deceased was in no way involved in the question of the guilt of the prisoners. The only inquiry that could be made about his character, was whether he was a violent and dangerous man, and only then, “ when the evidence is wholly circumstantial, and the character of the transaction is in doubt,” or when “there is evidence tending to show that the killing may have been done on the principle of self-preservation.” State v. Turpin, 77 N. C., 473. But the facts of this case do not bring it within either exception.
The last exception taken by the prisoners, was by Gooch, to the ruling of the Court in.permitting the Solicitor to re-call and re-examine a witness. This, as it has often been decided, is a matter entirely in the discretion of the Court.
The three first instructions asked by the prisoners, which were refused by the Court, are all predicated upon an assumed state of facts, not warranted by the record. They are based upon the idea that Gooch was driven by the necessity of the emergency in which he was placed, to take the life of the deceased, and therefore he was excusable, or at most not guilty of murder. But in no view of the case, are the prisoners excusable. This offence is either murder or manslaughter.
The prisoners then asked the Court to instruct the jury, “that when a prisoner, relying upon extenuating circumstances to reduce the offence from murder to manslaughter or excusable homicide, and the circumstances come out from the State’s witnesses which tend to establish such defence, then it is the duty of the jury to consider all the evidence, and if they are not satisfied of the guilt of the accused beyond a reasonable doubt, they should acquit.” Whatever apparent reasonableness there may be in the the proposition here contended for, the rule in that respect has too often been recognized by this Court, to allow a departure from it at this time. See the cases of the State v. Mazon, 90 N. C., 676; State v. Carland, Ibid., 668; State v. Willis, 63 N. C., 26; State v. Elliott, 2 Winston, 56; State v. Brittain, 89 N. C., 481.
*1011The Court was next asked to instruct the jury, “that there was no evidence of any conspiracy or agreement between Gooch and Smith, the prisoners, to go to Cheatham’s store for an unlawful purpose, or to attack the Cheathams, or in anywise to injure them or either of them.” The Court declined to give the instructions, and left that question to the jury.
The Court, in view of the facts of the case, could not give this instruction, and instead thereof charged, “If you are satisfied beyond a reasonable doubt, that Smith was there by precon-cert with Gooch, to assault John Cheatham, or draw'him into a fight, though they may not have intended to kill Cheatham, and Gooch did kill Cheatham in carrying out such preconcerted unlawful purpose, both are guilty of murder.” This presents the main point in the case, upon which the question of murder depends, and raises the question, was there any evidence of a preconcert between the prisoners to assault the deceased, or draw him into a fight. If there was such evidence, it is unnecessary to consider the case in any other aspect. What then, is the evidence tending to show a preconcert between the prisoners for such an unlawful purpose? The prisoners were boon companions; they were co-laborers in the same employment; they were generally seen together, late in the evening, in that part of the city near the store of Cheatham; they both had accounts with Cheatham; twelve months before the homicide, while together, Gooch said to Smith, referring to the false accounts made by Cheatham against some of the street hands, “ if Cheatham ever ‘ messes’ with me as he does with some others, I’ll kill him.” They both had accounts in 1885, with Cheatham, and each complained that the account against him was unjust; and credit had been refused to both of them by Cheatham, in the spring preceding the homicide. Some short time before the homicide, they were together at Ellis’ store; left together, and as-they were leaving, the one said to the other, “let’s go where we are going,” and they went to Cheatham’s store. Smith went down in the store, if James Cheatham is to be believed, to where the deceased was, *1012and asked for his account, and while deceased was showing him his account, Gooch went into the store in his shirt sleeves, and walked down and stopped between deceased and Smith. Smith, after examining the account, said it was not correct, that he had paid it two or three times. Deceased replied, he could not say that, that he had got every thing on there; that he did like-he had come in there for a row any way, and he had better go out. The deceased then moved over to the opposite counter,, and sat in a chair. Smith repeated the remark, and made at him for a fight; the deceased got out of the chair, and pushed Smith against the counter. James Cheatham parted them by-pulling deceased away, and holding Smith, and while holding Smith, Gooch rushed on deceased, who cried out two or three times, “he is cutting me.” James Cheatham then turned Smith loose, and hastened to part them. Gooch was flat on his back, and decased was on top of him, with his head turned off, and as James Cheatham stooped to pull deceased off, Smith cut him-on the shoulder, and as he turned, he cut him again in the side.
The deceased was stabbed in three places, one wound on the-left side of the face, from the cheek to the jaw-bone — one a little-below the left nipple, and the other on the right of the nipple. The last went straight in, and the other ranged down, at an angle of 45 degrees. The prisoners left this scene of blood together, and when they reached the street, the one said to the other, “ We have about finished the d — n scoundrel.” Smith went to Ellis’,, bleeding from a scratch on his face, and telling with exultation, ‘that he had ‘snagged’ Jim Cheatham twice, who ‘bleated’ and ran behind the counter,” and said “he would go back to Cheat-ham’s and whip out the whole house.” These facts, if believed by the jury, and they were testified to by James Cheatham, whose character was proved to be good, were surely some evidence of a preconcert between the prisoners to attack the deceased. Their-conduct during the fight, offers some evidence of a common purpose, if not an. express agreement, to stand by and assist each other, if either should get into a fight with the deceased. Gooch, *1013nrmed with a deadly weapon, follows Smith into the store, and takes his stand near by, as if ready to join in the bloody drama, :as soon as the play is opened. Smith uses offensive language, •calculated to provoke the deceased to an assault, and failing in this, makes the assault himself; and as soon as he and the deceased are separated, Gooch rushes, without the slightest provocation, upon the deceased, and during their short contest, when the •deceased is unarmed and using no violence upon his person, except that of being on him, which Gooch himself says was by accident, he gives him two or three stabs, one or two of which are mortal; and then when James Cheatham interferes, as a peacemaker, to separate the combatants, Smith inflicts two severe stabs upon him, and then to show the mala mens by which they were •actuated, on leaving the house, Gooch uses the language testified to by Alston, which indicated a remorseless and vindictive spirit, which had accomplished its purpose. Gooch testified that Smith ■did the cutting, and Smith admitted in his testimony that he had nut James Cheatham, but denied that he had cut John Cheatham. It is certain that he was cut by the one or the other, and we think from the nature of the wounds as described, they must have been inflicted by Gooch, as testified by James Cheatham. But be that as it may, there beiug some evidence produced before the jury that there was a common purpose on the part of the prisoners to ■assault or beat John Cheatham, and in pursuance of that common design he was assaulted and killed, both the prisoners would be guilty of murder, and the jury were warranted in so finding.
Lord Hale, in vol. 1, p. 440 of the Pleas of the Crown, thus lays down the doctrine on the subject: “ If divers persons concur in an intent to do mischief, as to kill, rob, or beat another, and •one did it, they are all principals, and if many be present, and only one gives the stroke whereof the party dies, they are all principals, if they came for that purpose.”
And in State v. Simmons, 6 Jones, 21, this Court held : “ When •on a trial for murder, it appeared that two persons had formed, the purpose of wrongfully assaulting the deceased, and one of *1014them, in furtherance of such purpose, with a deadly weapon and without provocation, slew him, it was held both were guilty of murder.”
In Regina v. Cox, 4 C. & P., 538, the rule is thus laid down : “If two persons are engaged in pursuit of anunlawful object, the two having the same object in view, and in pursuit of that common object, one of them does an act which is the cause of death,, under such circumstances that it amounts to murder in him, it amounts to murder in the other also.”
There is another view of the case, in which the jury might have been warranted in finding the prisoners guilty of murder, and it is this. If the jury believed from the evidence, that the prisoners went to the store of Cheatham, with the purpose, under the pretense of fighting, to stab Cheatham, and either the one or the other stabbed and killed the deceased, it was murder in the assailants, no matter what provocation was given, or how high the assailants passion was aroused during the fight, for the motive in such a case is express, State v. Lane, 4 Ired., 113; or if they believe from the evidence, that Gooch had prepai'ed himself with a knife, wdth the intention of using it in case he or Smith got into a fight with the deceased, and went to Cheatham’s store with the intention of having a conflict with him, and did kill him with the knife, and Smith, having a knowledge of the purpose, went with him, and was present assisting in the conflict, the jury were well warranted in finding them both guilty of murder. State v. Hogue, 6 Jones, 381.
There is still another view of the case which sustains the verdict of the jury. Although they might believe there was no-previous purpose on the part of the prisoners to assail the deceased, and they went to his store for a lawful purpose, and got into a sudden combat with the deceased, and they believed that the provocation given by the deceased was but slight, and in the progress of the fight, the prisoners used an excess of violence, out of all proportion to the provocation, the killing was murder. State v. Chavis, 80 N. C., 353; State v. Curry, 1 Jones, 280; *1015 Stale v. Hildreth, 9 Ired., 440. In this last case it was held, “ if a party enters into a contest, dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter, but murder.”
Our conclusion is that there is no error. This opinion must therefore be certified to the Superior Court of Wake county, that the sentence of the law may be pronounced.
No error. Affirmed.