
    STATE v. MARTIN BOST.
    (Filed 13 May, 1925.)
    1. Appeal and. Error — Settlement of Case — Notice to Parties — Statutes.
    Unless the case on appeal to the Supreme Court has been settled by agreement of counsel, C. S.,' 644 gives the parties the right to be notified by the judge of the place and time he will settle the case, and where the appellant has asked the judge to fix the time and place for the purpose, it is error for the trial judge to disregard his right to be present.
    2. Appeal and Error — Jurors—Challenge—Prejudice—Recordari.
    Where the appellant makes a motion in the Supreme Court for a recordari to show that he had Been prejudiced by being wrongfully compelled to accept a juror, lie must not only sliow that his peremptory challenge had been exhausted, but that the juror had been retained subject to his exception.
    3. Homicide — Murder — Self-defense — Instructions — Provocation—Quitting the Combat — Appeal and Error.
    In an action for a homicide, if there was evidence tending to show that the prisoner after provoking a quarrel with the deceased had left him and had gone off to' attend to his business, without evidence of his having provoked the quarrel afterwards, an instruction to the effect that the prisoner may not successfully show justification as a defense under the circumstances, is reversible error.
    Appeal by defendant from Stack, J., at October Term, 1924, of Oababkus.
    Criminal prosecution, tried upon an indictment charging tbe defendant with murder.
    "When tbe case was called, tbe solicitor for tbe State announced tbat be would not insist upon a verdict of murder in tbe first degree, but tbat be would ask for a verdict of murder in tbe second or manslaughter as tbe degree of guilt might be disclosed by tbe evidence adduced on tbe bearing.
    Tbe defendant, thereupon, admitted tbe intentional killing of tbe deceased with a deadly weapon, and pleaded tbat tbe same was done in tbe exercise of bis own proper self-defense. Under this admission, tbe defendant was given tbe opening and conclusion, both in tbe introduction of evidence and in tbe order of argument.
    There was evidence on behalf of tbe defendant tending to show tbat Jesse Yanderburg, in company with two of bis sons and a man by tbe name of Aiken, came 'to tbe borne of tbe defendant on Monday night, directly after dark, 15 September, 1924. They bad a 3-gallon jug of wine. Aiken and tbe two boys left about midnight, but Jesse Yander-burg, who bad evidently been drinking, refused to go away with them. Tbe defendant told him be might sleep in one of bis beds, but be soon went out, saying be was going borne. He was found, however, tbe next morning lying on tbe bed which tbe defendant bad offered him tbe night before. His bat and jug were on tbe porch and be was still wearing bis clothes.
    Yanderburg was about tbe defendant’s bouse all day Tuesday, it being a rainy day, and be talked of going borne several times. He even asked tbe defendant to let him have a mule to ride borne. This tbe defendant consented to do, but be failed to get away. Finally, as night came on, tbe defendant went out to feed bis stock and to milk bis cow. On returning to tbe bouse, according to tbe defendant’s testimony, tbe following took place: “I went through tbe cook room and in the dining room with my milk and I beard him kicking at tbe screen door. There was a well at the back end of tbe kitchen. When I went in the dining room, I went in the door next to the well and through. I never noticed whether the screen in the dining room was fastened. I went to shut the door. He kicked a hole a dog could go through in the screen, and when he saw me he said he had a gun in his pocket and was going to shoot me, and when I pushed the door shut he went off along on the porch; I could see him passing the window and I was coming on through shutting the other door, and I heard him out there cursing me, and I thought I’d get out of the house, and just as I walked to the door he was at the steps, had the axe up this way (indicating), and said he was going to come in there and kill me. If I’d stepped out he was close enough to reach me. If I could have got to the door sooner I could have got away, and I just had to shoot him or be killed. I shot twice with a pistol.”
    The deceased was a vigorous, active man, weighing about 200 pounds, while the defendant is 63 years of age and weighs about 150 pounds.
    It was the theory of the State that the deceased had been shot in the woods and probably carried to the house by the defendant, but there was little more than conjecture to support this theory. Two1 of the State’s witnesses testified that they heard three shots; and there was evidence tending to show that the axe was found some distance away from the porch. Yanderburg died the following day, after having made a statement to his wife about the shooting. In giving his dying declaration, she said: “I asked him what they fell out about. He said: ‘We didn’t have any fuss at all’; said he was at the woods, started home; T don’t know what made him shoot me.’ He didn’t say he shot him at the woods.”
    From a verdict finding the defendant guilty of manslaughter, and judgment pronounced thereon, he appeals, assigning errors.
    
      Attorney-General Brummitt and Assistant Attorney-General Nash for the State.
    
    
      J. L. Crowell, Hartsell & Hartsell, H. 8. Williams and J. Lee Crowell, Jr., for defendant..
    
   Stacy, C. J.,

after stating the ease: The defendant, in limine, suggested a diminution of the record and lodged a motion for certiorari, or that the case be remanded for settlement in agreement with the provisions of the statute. As a basis for this motion, it is alleged that the defendant’s statement of case on appeal, together with the solicitor’s objection thereto, was sent from Concord, N. C., to the judge at his home in Monroe, N. C., on 20 February, 1925, with the request that he fix a time and place for settling the case before him. On the following day tbe judge settled tbe case and returned tbe papers to tbe clerk without notice to counsel or opportunity for tbem to appear before bim wben be settled tbe case. Counsel for defendant assert tbat tbey expected to appear before tbe judge wben tbe case was settled, and tbat one of tbeir exceptions was modified or changed to tbe prejudice of tbe defendant.

"When tbe case on appeal is not settled by agreement of counsel, and tbe papers are sent to tbe judge with a request tbat be fix a time and place for settling same before bim, tbe statute, C. S., 644, provides: “Tbe judge shall forthwith notify tbe attorneys of tbe parties to appear before bim for tbat purpose at a certain time and place, within tbe judicial district, which time shall not be more than twenty days from tbe receipt of tbe request. At tbe time and place stated, tbe judge shall settle and sign tbe case, and deliver a copy to tbe attorney of each party, or, if-the attorneys are not present, file a copy in tbe office of tbe clerk of tbe court. If tbe judge has left tbe district before, tbe notice of disagreement, be may settle tbe case without returning to tbe district.”

Tbe defendant’s first exception as it appears in tbe statement of case on appeal is as follows: “After tbe State bad passed tbe jury, and after tbe State bad exhausted its peremptory challenges, and after tbe jury bad been tendered to tbe defendant, and before tbe jury was empaneled, tbe State received information tbat tbe juror, J. W. Driskill, bad committed a homicide himself, and thereupon stated to tbe court tbat this information bad been obtained, and tbe State asked tbe court in its discretion to be permitted to challenge tbe juror, Driskill, on tbe ground tbat be bad committed a homicide himself. Tbe defendant objected. Upon being questioned, tbe juror, J. W. Driskill, admitted tbat be bad killed a man and was put in jail for it, but tbat tbe grand jury found no bill against bim. Tbe court remarked at tbe time tbat it didn’t want any one on tbe jury tbat bad ever killed any one, and to this remark of tbe court tbe defendant excepted. Tbe court in its discretion allowed tbe challenge and stood tbe juror aside. To all of which tbe defendant in apt time excepted.”

It is averred tbat at tbe time tbe juror Driskill was excused by tbe court, tbe defendant, as well as tbe State, bad exhausted bis peremptory challenges, and tbat this circumstance was inadvertently omitted from tbe case on appeal, which tbe defendant thinks is material to bis exception, and tbat tbe judge would insert it if given an opportunity to do so.

There would be merit in tbe defendant’s motion if it appeared, which it does not, tbat be bad undertaken to challenge another juror after tbe juror Driskill bad been stood aside. S. v. Fuller, 114 N. C., 886. It is now tbe settled practice in this jurisdiction tbat no ruling relating to tbe qualification of jurors and growing out of challenges to tbe polls will be reviewed on appeal, unless tbe appellant bas exhausted bis peremptory challenges and then undertakes to challenge another juror. Oliphant v. R. R., 171 N. C., 303. His right is not to select, but to reject, jurors; and if the jury as drawn be fair and impartial, the complaining party would be entitled to no more on a new trial, and this he has already had on the first trial. S. v. Levy, 187 N. C., p. 587.

There is on the record, however, an exception which we think must be held for error. In dealing with the defendant’s plea of self-defense, the trial court instructed the jury as follows: “Before he can set up that plea, gentlemen of the jury, he must satisfy you that he did not provoke the difficulty, because when a man brings on a difficulty and he is forced to kill he cannot set up -the plea of self-defense, because he provoked the trouble. Another principle is, that if the defendant, in this case, entered into the difficulty at the beginning willingly, then he can’t set up the plea of self-defense.” This instruction was repeated in substance several times during the charge.

There is no substantial evidence on the record tending to show that the defendant provoked the difficulty or entered into it willingly, but if his Honor deemed it wise to emphasize this principle of law, we think, in view of the defendant’s evidence, he should have gone further and told the jury that the right of self-defense may be restored to one who has provoked a difficulty, or entered into it willingly, by “quitting the combat” in good faith and giving his adversary notice of such action on his part. S. v. Kennedy, 169 N. C., 326; S. v. Pollard, 168 N. C., 116. We assume this was an inadvertence on the part of the careful judge who tried the case, but we have repeatedly held that such omission is prejudicial error. Jarrett v. Trunk Co., 144 N. C., 299.

If the defendant had provoked the deceased to anger or had brought •on the difficulty at an earlier hour in the day, it would seem that when he went to feed his stock and milk his cow he had then abandoned the dispute or combat. At any rate, we think, the above instruction, while probably not reversible under a given state of facts, must be held for error on the present record, even in the absence of any special request. Butler v. Mfg. Co., 182 N. C., p. 553; Lea v. Utilities Co., 176 N. C., p. 514. “When the judge assumes to charge and correctly charges the law upon one phase of the evidence, the charge is incomplete unless it •embraces the law as applicable to the respective contentions of each party, and such failure is reversible error.” Brown, J., in Real Estate Co. v. Moser, 175 N. C., 259.

For error in the charge, as indicated, there must be another trial, and it is so ordered.

New trial.  