Thе appellants contest the validity of the trial and judgment below on three grounds.
*741 1. They assign as еrror the denial of tbeir motion in arrest of judgment on tbe ground that the minute docket failed to shоw the selection of the grand jury in the manner prescribed by the statute. However, the recоrd before us shows the organization of the court, the names of the jurors summoned for the term, thе names of the foreman and seventeen other grand jurors drawn therefrom, “then and there imрaneled, sworn, and charged,” as such, and that during the term the grand jury duly returned into open court a true bill of indictment against the defendants for murder, in the form set out verbatim, in the record, the bill showing the endorsement of the names of the State’s witnesses sworn and examined, and the statement over the signature of the foreman of the grand jury that it was a true' bill.
If the grand jury were improperly drawn, of whiсh there is no suggestion, advantage of that fact should have been taken by motion to quash, upon proper averment and proof, before arraignment and plea.
There wаs no such defect appearing affirmatively on the face of the record as wоuld entitle the defendants to have the judgment arrested and their motion was properly denied.
S. v. Bordeaux,
2. The defendants contend that the court erred in treating the bill, and so charging the jury, in effect, as if it contained two counts, and that since the bill charged a murder committed in the perpеtration or attempt to perpetrate a robbery, the allegations in the bill of willfulness, deliberation, and premeditation were improperly submitted to the jury.
The bill of indictment set out thе crime charged in the following language:
“The jurors for the State upon their oath do prеsent, that Tom Linney, alias Buffalo, and T. J. Jefferson, late of Forsyth County, on 5 April, A.D. 1937, with force and arms, at and in the aforesaid county, did unlawfully, willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, did kill and murder Herman W. Fogleman, while in the act of robbing the said Herman W. Fogleman, contrary to the form of the statute in such case mаde and provided and against the peace and dignity of the State.”
The statute (C. S., 4200) dividing the crime of murder into two degrees defines murder in the first degree, among other things, as one “perpеtrated ... by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the рerpetration or attempt to perpetrate any . . . robbery.”
The submission by the trial cоurt, under a correct charge, of both these phases of murder in the first degree may not be held for error.
S. v.
*742
Hunt,
The manner in which the court framed his instruсtions to the jury in defining the elements of first degree murder, as charged in the bill of indictment, was in all respects fair to the defendants and presented the ease clearly to the jury.
3. The defendants contend that there was error in the charge occasioned by the use, in the joint bill оf indictment, of the word “his,” in reference to malice, instead of “their”; and that the bill charged murdеr “in the act of robbing,” instead of charging that it was committed in the perpetration or attеmpt to perpetrate a robbery.
In
S. v. Garter,
That the murder was charged to have been committed while in the act of robbing the deceased was еquivalent to alleging that it was committed in the perpetration of the robbery. The primary meaning of the word “perpetrate” is “to do, or perform.”
There was no evidence of manslaughter, and the only issue in the trial was the identity of the defendants as the perpetrators of the crime charged. Under a fair and correct charge the jury has found that the defendants were the two who robbed and murdered the deceased.
In the trial we find
No error.