#### STATE v. WILL LOGAN.

(Filed 30 October, 1912.)

1. Murder — Instructions—“Deliberation or Premeditation” — Charge Construed as a Whole — Appeal and Error.

Upon, a trial for murder, a charge of the court, under pertinent evidence, to find the -prisoner guilty of murder in the first degree, if the jury were satisfied beyond» a reasonable doubt that the prisoner fired the fatal shot with “premeditation or deliberation” is not held for error because of the use of the disjunctive “or” for the conjunctive “and,” it appearing that the use of that word was an inadvertence; and it further appearing from the charge, construed as a whole, that the court charged that the shooting should have been done wifih “deliberation and premeditation” in order to convict him.

2. Same — Interpretation of Statutes — Harmless Error.

Under our statute, Revisal, sec. 3631, a murder committed in the perpetration of a robbery, which the evidence in this case *236discloses, is murder in tbe first degree, and an instruction in such instances which, uses the disjunctive “or” for the conjunct- ■ ive “and,” as, if the jury should be satisfied beyond a reasonable doubt that the prisoner killed the deceased with “premeditation or deliberation,” to finid him guilty of murder in the first degree, is immaterial, and is not held for reversible error.

Appeal by defendant from Whedbee, J., at January Term, 1912, of Anson.

Indictment for murder. Tbe prisoner was convicted of murder in tbe first degree of one Fred Hendrixson, and from tbe sentence of death appeals. '

Attorney-General Bickett and Assistant Attorney-General Gal-vert for the State.

Lockhart & Dunlap for defendant.

Bbown, J.

Tbe record presents four assignments of error, three relating to tbe evidence and one to tbe charge of tbe court. After giving each of them tbe consideration which tbe importance of this case demands, we conclude that they are without merit, and cannot be sustained.

We deem it necessary to discuss only tbe assignment relating to tbe following charge, viz.: “If you find that tbe defendant fired tbe fatal shot, then you inquire as to whether or not it.was done with premeditation or deliberation, as I have defined to you; and if you are satisfied of tbe fact beyond a reasonable doubt, then you would return a verdict of murder in tbe first degree.”

It is clear that tbe use of tbe disjunctive “or” instead of tbe conjunctive “and” was an inadvertence upon tbe part of tbe able judge who presided at this trial. S. v. Teachey, 138 N. C., 589. But we are of opinion, upon examination of tbe entire charge, that tbe jury could not have been misled by it.

His Honor corrected the error completely in tbe closing words of tbe charge. After instructing tbe jury carefully and correctly as to reasonable doubt, be Said: “If you find be did shoot him, then ask yourself tbe question, Does this evidence satisfy you it was done with premeditation and deliberation, or does it satisfy you beyond a reasonable doubt that it was done in attempt to *237perpetrate or in perpetration of a robbery? If so, you will return a verdict óf guilty of murder in tbe first degree.”

Had bis Honor failed to correct tbe error, we would not regard it as material in tbis particular case.

Tbe statute, Revisal, 3631, declares a murder committed in tbe perpetration of, or in tbe attempt to perpetrate a robbery, to be murder in tbe first degree.

His Honor might well bave omitted from bis charge all reference to “premeditation and deliberation,” for tbe entire evidence in tbis record shows that tbe prisoner slew tbe deceased while perpetrating a robbery upon bis person. All tbe evidence was introduced by tbe State, tbe defendant offering .none. To illustrate tbe circumstances attending tbe homicide, we quote a part of tbe evidence. Edward Klobe testified:

“I came out and told Charley that I bad been robbed. Will was then at bis feet. After Charley and Logan came, Logan put bis pistol at bis breast and said, 'Give me your money!’ He said in English, 'Look out money.’ After Logan bad bis bands up and searched him and got $1.50. After be finished with him, be started to go through bis pockets again. After be finished Normy, be began with Hendrixson, and Hendrixson said be bad no money in bis pockets. While be was trying to bold up Hendrixson, Klobe started out of tbe door and Hen-drixson put bis bands on Klobe’s shoulders and Logan took bold of Hendrixson with one band and held tbe pistol in tbe other. As soon as be got out of the door, Hendrixson let go of Klobe and Klobe ran a short distance, and tbe first shot was fired, and Hendrixson called for tbe boys to come back and- help him. When Hendrixson called for help, they were in tbe road, and then tbe second shot was fired and Klobe ran to tbe deceased and said be was dead, and Normy ran to him and said be was dead.”

Tbe witnesss Charles Normy testified: “When they came in tbe tent, Will Logan began to go through Klobe; then be started to search me, and then be went and searched deceased; Logan bad pistol in bis band and searched pocket. When be started to 'search Hendrixson, Klobe went out and Hendrixson put bis band on Klobe’s shoulders. Will Logan caught deceased in col*238lar and liad pistol in other band; wben they got just outside of tent Will Logan fired the first shot; they were in arm’s leugth, Klobe was behind. Logan said nothing. The deceased was trying to get loose from him. Deceased hollered, ‘Come, help me!’ and the second shot came and Hendrixson fell. Will Logan fired the second shot. When it fired, Logan and Hendrixson were 15 or 20 feet apart.”

In any view of the evidence, if it is to be believed, the prisoner shot and slew the deceased in an endeavor to rob him, and that constitutes murder in the first degree.

No error.