The whole charge of the Court to the jury is not sent up. The presumption is that the instructions given were sufficient and correct, except in the respect as to which error is assigned. To that,alone we can properly advert.
There was evidence of express malice, and the whole evidence on the trial tended strongly to prove the murder as charged in the indictment. The Court instructed the jury “ that the defendant was guilty of murder, if he was guilty of any offence at all; that there was no element of manslaughter in the case.” Assuming, as we must, that it gave other appropriate instructions, it might give that assigned as error, if there was no evidence from which the jury might find the prisoner guilty of the lesser offence of manslaughter. The burden of proving the lesser offence was on the prisoner, and to prove the same, not by mere preponderance, but to the satisfaction of the jury. State v. Jones, 98 N. C., 651 ; State v. Dickerson, Id., 708; State v. Byers, 100 N. C., 512.
He insists that the evidence above recited constituted such evidence, and that the Court erred in failing to so tell the *506jury. We concur with the Court in saying that the evidence, in no just or reasonable view of it, presented any element of manslaughter. So far as appears, the prisoner and the deceased did not fight by consent upon a sudden quarrel, nor did the latter give the former legal provocation in any way. It does not appear that the deceased struck, or offered to strike, the prisoner, or that he had a pistol, knife or other weapon from which it might be inferred he intended to, or did so, in the dark. It does not appear that the deceased said or did anything to provoke the prisoner to slay him in the heat of passion. The mere fact that the witness heard the prisoner say to the deceased, as they walked off, “What you put your hand back there for?” and that she “heard a noise like they were running,” did not prove that they fought suddenly, or that the deceased struck or offered to strike the prisoner. Nor did the fact that the fatal wound was inflicted in front of the deceased’s person, of itself, prove that the parties had fought, or that the deceased had given the prisoner legal provocation. These facts could give rise to no more than vague conjecture in the absence of evidence of some positive hostile action of the deceased. The prisoner had a pistol, and the evidence tended to prove his aggressive, deadly purpose, and he may, probably did, suddenly seek his opportunity to shoot his victim from the front of him. But be this as it may, the facts in the evidence did not constitute evidence of manslaughter. The whole evidence went to prove that the prisoner slew the deceased, moved to do so by express malice. The jury, if they believed the evidence, could not justly have reached a different conclusion.