Exception 1. — The question was properly ruled out. It would not have served to corroborate wituess as to what she saw, which would have been competent, but only to show her belief or surmise at the time of the nature of the occurrence. It was simply irrelevant, and could throw no light upon the facts attending the homicide. There was no attempt to “ cut off the head” of anyone. That the witness thought and said otherwise that night, when she saw nothing that took place, is immaterial.
*732
Exception 2.
— The question was improperly excluded. It was competent to show the declaration ot' the prisoner made at the time as a part of the
res gestee,
and aho to confirm his testimony of Ilie transaction as given on the trial. While error in excluding competent testimony is cured by after-wards admitting it from the same witness, it is nut cured by admitting another to testify to the same purport.
State
v.
Murray,
Exception S. — The third exception is well taken. John .Jones, on behalf of the State, had testified as an eye-witness to the homicide, and had stated that he was not druuk when it occurred. Had this been pertinent only to impeach his character, his answer would have been conclusive. State v. Roberts, 81 N. C, 605. But it went rather to his capacity to know and remember with accuracy what took place. It was error, therefore, to exclude proof offered to show that he was “very drunk on that occasion.” It would have served to contradict him and to impair the credit to be given to his evidence, and would have been somewhat corroborative of the prisoner’s theory of self defence. When a witness had testified as an eye-witness to a transaction, it-would be competent to show that during the occurrence he was asleep or insensible, and, of course, also that he was very drunk.
Exception 4»
— The evidence of the homicide was not circumstantial, and though the plea of self-defence was set up, it did not appear that the prisoner knew the character of deceased for violence. Evidence to show such character was, therefore, properly excluded.
State
v.
Turpin,
77 N. C, 473;
State
v.
Hensley,
Exception />. — The 9th prayer for instruction was erroneously refused. State v. Sigman, 106 N. C , 728, 731.
Exceptions 6 and 11.
— The 10th prayer for instruction was properly denied. Much is left necessarily to the judgment of the officer in such cases, when acting in good faith and without malice.
State
v.
McNinch,
Exception 7.
— The 11th prayer for instruction was properly refused. Good faith and want óf malice apply as to extent of force used when the arrest is legal, but does not validate an illegal arrest.
State
v.
Hunter,
Exception 8. — The 12th prayer for instruction was properly modified by inserting the words,' “if the arrest was lawful.”
Exception 9.
— The 16th prayer for instruction -was, “ if the circumstances and facts of the homicide are left in doubt to the jury, and the jury are unable to say how the deceased came to his death and under what circumstances, the jury will render a verdict of not guilty.” This would be correct in passing upon the killing, if not conclusively shown to have been committed by the prisoner.. But if the killing is proved or admitted to have been done by the prisoner with a deadly weapon, as in this case, exactly the opposite of the prayer is the settled law in this State.
State
v.
Smith,
*734
Exception 10.
— The eighteenth payer was, “If there is a reasonable hypothesis, supported by the evidence, which is consistent with the prisoner’s innocence, then it is the duty of the jury to acquit.” This would be correct as to finding the killing to have been done by the prisoner when that fact is left in doubt. But when, as in this case, the killing by the prisoner has been established, the instruction would be illegal as to matters of excuse or mitigation, and the prayer must be construed with reference to the evidence.
State
v.
Tilly,
Exception 11. — This raises the same point as Exception 6.
Exception
1%. — Is without merit. The Court cannot single out a witness or witnesses and charge the jury, that if they believe those witnesses, to find so and so.
State
v.
Rogers,
Exception 13.
— There is no ground for this exception. The proposition of law was correctly stated
(State
v.
Kirby,
Exception 14-
— Is not well grounded. The prisoner has no cause to complain of the instruction. If so requested, the Judge might have told the jury that what would be excessive force in an individual .in an ordinary encounter, might not be so in an officer resisting the escape or rescue of a prisoner.
State
v.
McNinch
and
Slate
v.
Sigman, supra.
But the omission was not error when the instruction was not asked. Nor is the officer clothed with authority to judge arbitrarily of the necessity for killing. It must be left to the jury to judge of the necessity in each case.
State
v.
Bland,