¶1concurring: In S. v. Craine, 120 N. C., 601, it was held, approving Smith, C. J., in S. v. Grady, 83 N. C., 683, and Ruffin, G. J., in S. v. Stanton, 23 N. C., 424, that on an appeal from a conviction of a lesser degree of homicide upon an indictment for murder, if the case is sent back for a new trial, “it would be had for the offense of murder in the first degree, as charged in the indictment.” This case has been cited and approved on this point in S. v. Groves, 121 N. C., 568; S. v. Freeman, 122 N. C., 1016; S. v. Matthews, 142 N. C., 622. The same is held in Trono v. U. S., 199 U. S., 521, which “has reviewed the authorities and sustained the principle that a new trial in a capital case goes to the whole case, regardless of the former verdict.” S. v. Matthews, supra.
¶2It may, therefore, be well for the prisoner that he has escaped a new trial, for there is evidence that after leaving the fight he procured the deadly weapon and returned expressing his intention to use it. If the jury should find, and there is evidence to justify it in so finding, that there was sufficient “cooling time,” this would warrant, on another trial, a verdict of murder in the first degree, or at least murder in the second degree. As it is, the conviction is only of manslaughter with a punishment of three years in the State’s Prison.
¶3Possibly the prisoner may not have fully considered the fact that. the result of a new trial might have been less favorable to him.
¶4This was a drunken row in which one man was killed and several were badly injured. It is rarely that a homicide is brought on appeal to this Court in which intoxicating liquor was not the cause of the slaying of a fellow being. The¡ people of the State in 1907 by 44,000 majority decided to put an end to the traffic and numerous statutes have been passed since by the Legislature to cure defects which have been found by the courts, from time to time, to prevent the efficient execution of the law. The Federal Government has since passed a statute conferring full power upon each State to prevent the importation of liquor from other States as well as its manufacture and sale in its own orders, and an amendment to the United States Constitution has passed to apply to the whole Union and is now pending adoption by the requisite number of States.
¶5The enormous profit in the violation of our statutes alone stands in the way of the prevention of crime caused'by this illicit traffic. It rests with the officials of the State and counties by an efficient execution of the law to prevent such lamentable occurrences as that presented in this record.