#### STATE v. FRANK HENDERSON.

(Filed 24 December, 1920.)

1. Courts — Continuance of Case — Discretion—Appeal and Error.

A motion of tbe defendant, indicted for a crime, to continue bis case because be bad not bad time to prepare bis defense is addressed to tbe sound discretion of tbe trial judge, and is not reviewable on appeal in tbe absence of abuse of tbis discretion.

2. Appeal and Error — Objections and Exceptions — Brief—Assignments of Error. .

Tbe appellant must set out and discuss in bis brief tbe exceptions be relies on, and bis request, in bis brief, tbat tbe Supreme Court consider all tbe exceptions set out in tbe record is not a compliance with the rule.

3. Homicide — Murder—Premeditation—Method of Killing — Evidence— Manslaughter — Instructions.

A deliberate and premeditated purpose to kill may be evidenced by tbe manner employed in tbe taking of tbe life, as where there is evidence tbat tbe prisoner, living in adultery in another State, away from bis home, returns thereto by rail, avoiding recognition, discovers another man with bis wife, waits until be has left her, and then chokes her to death, etc., and upon tbis, and other conflicting evidence, a motion, based upon a lack of premeditation and motive, as of nonsuit thereon, will be denied; and Held, further, under tbe evidence in tbis case, an exception tbat tbe judge failed to charge upon tbe aspect of manslaughter cannot be sustained.

Appeal by defendant from Long, J., and a jury, at September Term, 1920, of MadisoN.

Tbe defendant, together with one Gertrude Sams, was indicted for tbe murder of bis wife. At tbe trial tbe defendant, Frank Henderson, was convicted of murder in tbe first degree, and Gertrude Sams was acquitted. From tbe judgment upon such conviction, Frank Henderson appealed to tbis Court.

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

■ J. Coleman Ramsey and Alarle W. Brown for defendant.

BkowN, J.

Tbe defendant moved for a continuance of tbe cause because be bad not bad time to prepare bis defense. Tbis matter was presented to tbe presiding judge by affidavit, and be declined to grant tbe continuance. Tbis is well settled to be a matter resting in tbe sound discretion of tbe judge, and will not be reviewed by us unless there is evidence of an abuse of sucli discretion. There is nothing of that sort in tbis record. Tbe same may be said of a motion to remove tbe cause to another county.

In tbe typewritten brief of tbe counsel for defendant, we are requested to consider all tbe exceptions set out in tbe record. There are 186 pages of typewritten matter in tbis record, and tbe Court cannot be expected to bunt up all tbe exceptions of an appellant. ~We have frequently said that it was bis duty to set out in bis brief tbe exceptions that be relies upon, and to discuss them. "We do not consider any matter of sufficient importance for us to consider which is not of sufficient importance to be discussed in tbe brief.

Tbe exception to tbe refusal of tbe court to charge tbe jury that there was no evidence of murder in tbe first degree was properly overruled.

Tbe defendant offered no evidence. There was evidence introduced by bis codefendant, Gertrude Sams. Tbe confessions of tbe defendant were introduced in evidence and properly admitted, and in these confessions be admits tbe killing of bis wife. Tbe counsel for tbe defendant contends that if bis confession is true, be is not guilty of murder in tbe first degree, and tbe motion to nonsuit tbe first degree count should have been allowed, and tbe special instructions given.

Tbis may all be true, but tbe jury is not required to accept tbe whole of tbe confession. They may accept a part and reject a part. In considering whether there is any evidence of premeditation and deliberation, tbe entire evidence must be considered, and in tbe aspect most favorable to tbe State.

Tbe State’s evidence tended to show that on tbe morning of 24 August, 1920, about 6 :30, tbe dead body of defendant’s wife was found upon tbe porch of tbe bouse where she lived, as though, apparently, laid out by some person. There was no bat upon her bead or shoes or stockings upon her feet. Her hair was loose, and there were fragments of grass and leaves in it, while her feet showed signs of dirt, as though she bad been walking barefooted. Dr. J. N. Moore, a practicing physician and coroner of Madison County, held tbe post mortem examination upon her body that day. He found a frothy mucus issuing from tbe mouth and *737nose, imprints of finger nails on each, side of ber tbroat, black and blue spots on ber left arm and right leg, tbis discoloration extending over tbe lower part of ber tbroat and back of it, and over almost ber entire back, and parts of botb legs and botb arms. He further stated tbat in bis opinion sbe died of strangulation. Tbe bouse itself was a small wooden bouse, witb a porcb in front, about two feet from tbe ground and about eight or ten feet wide. It is about fifteen or twenty feet from tbe road. On tbe side of tbe road, but about 17 steps away was a level place above tbe road covered witb old dead leaves and things of tbat sort. There was evidence of a struggle there, and barefoot track and other tracks. Sheriff Bailey picked up a hairpin there tbat corresponded witb hairpins in tbe hair of tbe deceased, and tbe dead leaves at tbat place corresponded witb those in ber hair. On tbe opposite side of tbe bouse from tbis place be also saw a woman’s track, a heel of a woman’s shoe, and it looked' like a woman bad gotten up on tbe bank and mounted a horse or something. He saw tbe whole track of tbe shoe (p. 55). Other witnesses testified to the track of tbis woman, and further bn they discovered tbe track of a mule. Tbe defendant acknowledged tbe killing of bis wife. He said be came on No. 27 tbat passes “here” about 9:42 on tbe night of 23 August; tbat be got off tbe train at Barnard and started on out home. He was going down to Sandy Bottom, and coming up tbe road tbat comes down tbe railroad, about a mile tbis side of Betsy’s Siding, and as be went on down tbe railroad be struck up witb a man who bad some whiskey, and who gave him two or three drinks of whiskey; tbat be went tbis road up Sandy Bottom and went around borne, and when be got home there was a man there witb a mule and bis wife was on tbe porcb, and be just passed right on down tbe road a little piece, and sat down, and be said tbat tbe man got on tbe mule and left, and said directly sbe came down where be was and said they got to> talking, and one word brought on another, and said after a while be said be choked ber, and said in a minute or two sbe got up and put ber band on bis shoulder and took him by tbe arm and they went back up to tbe bouse, and sbe sat on tbe porch, and be sat down in tbe yard, and she fell over on tbe porcb. He said be thought sbe was crying, and went up to ber and saw sbe was dead; and be said tbat sorter straightened, him up and be sorter straightened ber out and left. Said be came on. back down tbat same road to Betsy’s Siding to tbe railroad, and said be passed here about three o’clock in tbe morning and caught a freight at-Eollins’ and went into Asheville and caught tbe early morning train out of Asheville into Spartanburg.

¥e think upon tbis evidence tbe jury may well have inferred tbat tbe killing of tbe wife by tbe husband was premeditated and deliberate. It doesn’t require any great length of time to elapse between tbe time when *738tbe design to kill is formed and wben it is put into execution. When tbe purpose of killing is weighed long enough to form a fixed design to kill, and at a subsequent time, no matter bow soon or bow remote, it is put into execution, there is sufficient premonition and deliberation to constitute murder in tbe first degree. S. v. Covington, 117 N. C., 834; S. v. Dowden, 118 N. C., 1145.

There is evidence of motive to put tbe wife out of tbe way. Tbe defendant bad deserted bis wife and' children, according to the evidence, and bad gone to another State and was living in adultery with bis co-defendant, Gertrude Sams. He was intent On selling tbe borne where bis wife and children lived, but she refused to join in tbe execution of tbe deed.

On tbe afternoon of tbe homicide be left Spartanburg, South Carolina, and while riding on tbe train tried to conceal himself from tbe passengers who might recognize him. He got off tbe train between 9 and 10 o’clock the night of 23 August. According to bis own statement, be went to his wife’s home and, seeing a man there with a mule with bis wife on the porch, be passed by and concealed himself until tbe man left. His own confession, as well as tbe evidence of tbe physician, shows that be strangled his wife to death. The evidence also shows that her body had been badly beaten up; that there were black and blue sp>ots on her left arm and right leg, and all over her entire back and parts of both legs and both arms. Tbe method employed to produce death is some evidence of a deliberate purpose to kill. A man may fire a pistol in tbe beat of passion and kill another, and unpremeditately, but one who strangles bis wife and beats her to death, not only employs a most brutal and inhuman means, but be employs one that indicates a deliberate purpose to destroy life at all hazards. He has tbe opportunity to see tbe effect of what be is doing. There is time for repentence and of an ■opportunity to stop before be has finally carried out bis fiendish purpose.

There is also evidence that the defendant bad a confederate with him to assist him in getting rid of bis wife, and this confederate, it is contended by tbe State, must have been Gertrude Sams.

It is useless, however, to discuss this evidence at length. There is abundant evidence to go to tbe jury that tbe defendant deliberately and purposely killed bis wife, and that be bad a very compelling motive which urged him on.

The defendant excepts because the judge failed to present to the jury a view of manslaughter. His Honor very properly charged tbe jury that there was no evidence of manslaughter in tbe case. There is no evidence that tbe wife was armed or committed any act which would excuse tbe conduct of tbe defendant.

*739On account of tbe importance of tbis case, we bave not confined our examination of tbe record to tbe matters presented in tbe brief. We bave examined tbe whole record and find

No error.