The defendant killed one J. 0. Singleton by striking him' on the head with a baseball bat. The two men had been engaged in a fight, and the defendant contended that he slew the deceased in his own proper self-defense. The jury convicted the defendant of manslaughter, which is the unlawful killing of a human being without malice and without premeditation and deliberation. S. v. Baldwin, 152 N. C., 822.
Any instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. S. v. Craton, 28 N. C., p. 179. The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself. S. v. Archbell, 139 N. C., 537; S. v. Sinclair, 120 N. C., 603; S. v. Norwood, 115 N. C., 789.
Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly within the foregoing definition is one of law, and the Court must take the responsibility of so declaring. S. v. Sinclair, supra. But where it may or may not be likely to produce fatal results, according to the manner of .its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury. S. v. West, 51 N. C., 505; Krchnavy v. State, 43 Neb., 337. A pistol or a gun is a deadly weapon (S. v. Benson, 183 N. C., 795); and we apprehend a baseball bat should be similarly denominated if viciously used, as under the circumstances of this case. S. v. Brown, 67 Iowa, 289; Crow v. State, 21 L. R. A. (N. S.), 497, and note.
*471Tbe defendant claimed tbat be struck-'Singleton in self-defense; and appellant’s chief exception is tbe one directed to tbe following portion of bis Honor’s charge: “Tbe law presumes malice from tbe intentional slaying of a human being with a deadly weapon, and where tbe defendant admits tbe killing or tbe evidence satisfies tbe jury beyond a reasonable doubt tbat one has slain bis fellow-man intentionally with a deadly weapon, tbe law imposes upon.tbe defendant tbe burden of disproving malice, if tbe defendant would reduce tbe grade of tbe offense from murder to manslaughter. In other words, be must in such a case satisfy tbe jury, but not beyond a reasonable doubt, tbat tbe slaying was without malice, and if be would further entitle himself to a verdict of not guilty, tbe law imposes upon him tbe burden of excusing tbe killing upon tbe principle of self-defense.”
We find no error in this instruction.
When it is admitted or established by evidence tbat tbe defendant killed tbe deceased with a deadly weapon, tbe law raises two presumptions against him: first, tbat tbe killing was unlawful, and second, tbat it was done with malice; and an unlawful killing with malice is murder in tbe second degree. S. v. Fowler, 151 N. C., 732.
Tbe law then casts upon tbe defendant tbe burden of proving to tbe satisfaction of tbe jury, not by tbe greater weight of tbe evidence nor beyond a reasonable doubt, but simply to tbe satisfaction of tbe jury (S. v. Carland, 90 N. C., 675), tbe legal provocation tbat will rob tbe crime of malice and thus -reduce it to manslaughter, or tbat will excuse it altogether upon tbe grounds of self-defense, accident or misadventure. S. v. Little, 178 N. C., 722.
Tbe record presents no reversible error, and hence tbe verdict and judgment entered below must be upheld.
No error.