#### STATE v. LOWELL WALL.

(Filed 10 January, 1934.)

1. Ci-iminal Law E <1—

Tire announcement of the solicitor, made before entering upon tbe trial, that the State would not ask for a verdict of more than murder in the second degree, is tantamount to taking a nolle prosequi on the charge of first degree murder.

2. Criminal Law L e — Evidence held not prejudicial in view of withdrawal of charge of first degree murder and proof of killing with deadly weapon.

Where the evidence shows that defendant killed deceased with a deadly weapon, and the State has taken a nolle prosequi on the charge of first degree murder, the admission of testimony tending to show premeditation or malice on the part of -defendant cannot be held for reversible error, since the element of premeditation had been withdrawn from the consideration of the jury, and malice and unlawfulness of the homicide were presumed from the intentional killing with a deadly weapon.

*6603. Homicide G d—

The introduction in evidence of deceased’s bloody clothes in a prosecution for homicide cannot he regarded as harmful or erroneous, they being competent proof of a fact in question and being merely stronger proof than oral evidence.

Appeal by defendant from Sink, J., at May Term, 1933, of Rock-ingham.

Criminal-prosecution tried upon indictment charging the defendant with the murder of one Sandy Sisk.

Lowell Wall shot and killed Sandy Sisk on Easter Monday, 1933, about 3 :00 a.m., while the two were engaged in a duel with pistols at the home of Mrs. Nat Martin, mother-in-law of the deceased. The position of the defendant is that he did not bring on the fight and that he used no more force than was necessary to repel the attack in his own proper self-defense.

Over objection of defendant, Shackie Belton, a witness for the State, was allowed to testify that about a month before the shooting, the defendant told him that on one occasion he could have killed Sisk if he wanted to and claimed he did it in self-defense, that he came mighty near doing it, that Sandy was jealous of him and his wife.

The deceased’s bloody clothes were also exhibited to the jury over objection of defendant.

Verdict: Guilty of murder in the second degree.

Judgment: Imprisonment in the State’s prison, at hard labor, for a term of not less than fifteen nor more than twenty years.

The defendant appeals, assigning errors.

Attorney-General Brummitt and Assistant Attorneys-General Seaweland Bruton for the State.

Sharp & Sharp and Joe W. Garrett for defendant.

Stacy, O. J.

The announcement of the solicitor, made before entering upon the trial, that the State would not ask for a verdict of more than murder in the second degree, was tantamount to taking a nolle prosequi on the capital charge. S. v. Gregory, 203 N. C., 528, 166 S. E., 387; S. v. Brigman, 201 N. C., 793, 161 S. E., 727; S. v. Spain, ibid., 571, 160 S. E., 825; S. v. Hunt, 128 N. C., 584, 38 S. E., 473.

In this state of the record, the testimony of the witness, Shackie Belton, even if regarded as indefinite or too remote in point of time, could not be held for reversible error, though admitted over objection of defendant, for the element of premeditation and deliberation, necessary to be shown on the capital charge, had been removed from the case *661by tbe action of tbe solicitor, and botb tbe unlawfulness of tbe homicide and malice on tbe part of tbe defendant were presumed from tbe intentional billing of tbe deceased witli a deadly weapon. S. v. Bailey, ante, 255.

Nor can tbe introduction in evidence, and exhibition to tbe jury, of deceased’s bloody clothes be regarded as harmful or erroneous. It is not a valid ground of objection to evidence that it tends to prove tbe fact in question more conclusively when tbe article to which it refers is exhibited, instead of being left to tbe description of witnesses. Such objection fails to -take into account 'the difference between tbe strength of evidence and its competency. S. v. Westmoreland, 181 N. C., 590, 107 S. E., 438; S. v. Vann, 162 N. C., 534, 77 S. E., 295.

Tbe remaining exceptions discussed on brief present no new question of law or one not heretofore settled by a number of decisions. In no view of tbe case could tbe demurrer to tbe evidence have been sustained; and tbe charge is free from valid objection. Tbe verdict and judgment will be upheld.

No error.