#### STATE v. KOHLER HOLDSCLAW.

(Filed 15 December, 1920.)

1. Homicide — Murder—Motive—Evidence.

Evidence that the deceased had been living in an illicit manner for years with a woman with whom the defendant was infatuated, and to his knowledge, is sufficient to show the defendant’s motive in taking his life, upon his trial for murder.

2. Homicide — Murder—Evidence—Res Gestae — Res Inter Alios Acta.

Upon evidence tending to show that the defendant premeditatively and deliberately shot and killed the deceased for illicitly living with the woman with whom he was infatuated, testimony that others had remonstrated with the deceased for so doing, and the conduct of the woman over the body of the deceased immediately after the killing, etc., is not a part of the res gestae, but res inter alios acta.

3. Homicide — Murder—Premeditation.

The length of time between the premeditation and killing is immaterial in order to convict the defendant of murder in the first degree, and if he had preconceived the purpose to kill in all events, for however short a time, it is sufficient.

INDICTMENT for murder, tried before McElroy, J., at July Term, 1920, of Catawba. Tbe defendant was convicted of murder in tbe first degree of John W. Gabriel on 29 December, 1919. From tbe sentence of death, defendant appeals.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

A. A. Whitener and M. H. Yount for defendant.

Beown, J.

Tbe evidence tended to prove tbat tbe defendant and tbe deceased were at Connor’s store at Terrell, in tbe county of Catawba, on 29 December, 1919; tbat no words passed between tbe defendant and tbe deceased, according to tbe State’s witness, preceding tbe shooting. The' deceased bad a negro boy named Bud Farrar to help, crank bis automobile. Tbe deceased was leaning over tbe hood of tbe machine pulling tbe 'flood wire when tbe defendant advanced on him without warning and fired bis first shot. Tbe shot entered tbe right side of deceased’s bead, and be fell backwards prone upon tbe ground. Tbe defendant advanced toward him and fired tbe second shot directly into bis forehead as be lay upon tbe ground. Either shot would have been fatal. Tbe defendant then mounted. bis horse, which be bad ready saddled and bridled, waved bis pistol towards Marjorie Lockman, who *732was at Connor’s bouse, about 125 yards off, and exclaiming, “Fare you well, Marjorie!” rode rapidly off, and was afterwards found in tbe State of Alabama.

There was ample evidence of a motive to take tbe life of tbe deceased. Tbe defendant was infatuated witb Marjorie Lockman, wbom, tbe evidence showed, bad been living witb tbe deceased in an illicit manner for some years.

Tbe defendant offered to prove, first by tbe witness Bruce G-abriel, then by tbe witnes's Blain Sigmon, ’ and also by tbe witness Henry Gabriel, that each bad at different times a conversation witb tbe deceased, witb reference to bis illicit relationship witb Marjorie Lockman, and in wbicb each attempted to dissuade him from continuing it further, and to each tbe defendant replied signifying bis intention of continuing it, and of bis determination not to be interfered witb by the respective witnesses or any other.

Defendant offered to prove by tbe witness, Sheriff Isenhour, that on tbe day of tbe homicide be bad a conversation witb Marjorie Lockman wherein she told him of her illicit relations witb tbe deceased since she was thirteen years of age, and that she stated to tbe witness that defendant bad been begging her- to marry him, and that she could not on account of deceased.

Defendant offered to prove by tbe witness Henry Gabriel that be knew that there was a general reputation in tbe community that there was an illicit relationship existing between tbe deceased and Marjorie Lockman.

Defendant offered to prove by the witness Gabriel that Marjorie Lock-man, when she came up to tbe dead body, fell down over it and cried out, “Some one has killed my darling.”

None of this testimony was competent. It is all irrelevant to tbe issue to be tried by tbe jury, and could furnish no justification or excuse for tbe killing of tbe deceased, if it bad been admitted. None of tbe proposed facts was a part of tbe res gestae, but all were res inter alios acta. S. v. John, 30 N. C., 330; S. v. Samuel, 48 N. C., 74; S. v. Harman, 78 N. C., 515.

There are several exceptions to tbe judge’s charge wbicb it is unnecessary for us to consider seriatim. There was abundant evidence of preparation and premeditation wbicb bis Honor correctly recited to tbe jury. In charging tbe jury as to what constitutes premeditation, we think tbe judge carefully followed tbe well settled decisions of this Court; No particular time is necessary to constitute premeditation and deliberation for conviction of murder in tbe first degree under tbe statute. If tbe purpose to kill at all events has been deliberately formed, tbe interval wbicb elapses before its execution is immaterial. S. v. Banks, 143 N. C., 652.

*733Tbe judge very fully stated tbe contentions of tbe defendant, together witb tbe evidence upon wbicb be relied, in a very clear manner, fbe defendant relied upon a plea of self-defense. Tbe instructions upon tbat phase of tbe case followed tbe decisions of tbis Court. S. v. Clark, 134 N. C., 698; S. v. Bailey, 179 N. C., 724.

Upon a careful review of tbe whole record, we are unable to find any reversible error.

No error.