The court below was of opinion that the evidence was sufficient to justify and to require submitting to the jury defendant’s plea of self-defense. With this we agree. However, exceptions to the charge of the court with respect thereto reveals prejudicial error.
The intentional killing of a human being with a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree. When the implication is raised by an admission or proof of the fact of killing, the burden is on the defendant to show to the satisfaction of the jury facts and circumstances sufficient to reduce the homicide to manslaughter or to excuse it. S. v. Robinson, ante, 273, and cases cited.
“Where a man is without fault, and a murderous assault is made upon him, an assault with intent to kill, he is not required to retreat, *307but may stand bis ground, and if be bill bis assailant and it is necessary to do so to save bis own life or protect bis person from great bodily barm, it is excusable homicide and will be so held.” Hoke, J., in S. v. Blevins, 138 N. C., 668, 50 S. E., 763; S. v. Robinson, ante, 273, and cases cited.
Tbe plea of self-defense or excusable homicide rests upon necessity, real or apparent. In S. v. Marshall, 208 N. C., 127, 179 S. E., 427, tbe principle is clearly stated: “The decisions are to this effect:
“1. That one may kill in defense of himself or bis family when necessary to prevent death or great bodily barm. S. v. Bryson, 200 N. C., 50, 156 S. E., 143; S. v. Bost, 192 N. C., 1, 133 S. E., 176; S. v. Johnson, 166 N. C., 392, 81 S. E., 941; S. v. Gray, 162 N. C., 608, 77 S. E., 833.
“2. That one may kill in defense of himself or bis family when not actually necessary to prevent death or great bodily barm, if be believes it to be necessary and has a reasonable ground for tbe belief. S. v. Barrett, 132 N. C., 1005, 43 S. E., 832.
“3. That tbe reasonableness of this belief or apprehension must be judged by tbe facts and circumstances as they appeared to tbe party charged at tbe time of tbe killing. S. v. Blackwell, 162 N. C., 672, 78 S. E., 316.
“4. That tbe jury and not tbe party charged is to determine tbe reasonableness of tbe belief or apprehension upon which be acted. S. v. Nash, 88 N. C., 618.”
In S. v. Cox, 153 N. C., 638, 69 S. E., 419, it is said: “In order to make good tbe plea of self-defense tbe force used must be exerted in good faith to prevent tbe threatened injury, and must not be excessive or disproportionate to tbe force it is intended to repel, but tbe question of excessive force was to be determined by tbe jury.” S. v. Robinson, 188 N. C., 785, 125 S. E., 617; S. v. Terrell, 212 N. C., 145, 193 S. E., 161.
“Tbe legal provocation which will reduce murder in tbe second degree must be more than words, as language, however abusive, neither excuses nor mitigates tbe killing, and tbe law does not recognize circumstances as a legal provocation which in themselves do not amount to an actual or threatened assault.” S. v. Benson, 183 N. C., 795, 111 S. E., 869.
In S. v. Barrett, 132 N. C., 1007, 43 S. E., 832, Walker, J., speaking to tbe question, said: “Tbe defendant’s conduct must be judged by tbe facts and circumstances as they appeared to him at tbe time be committed tbe act, and it should be ascertained by tbe jury, under evidence *308and proper instructions of tbe court, whether he had a reasonable apprehension that he was about to lose his life or to receive enormous bodily harm. The reasonableness of his apprehension must always be for the jury, and not the defendant, to pass upon, but the jury must form its conclusion from the facts and circumstances as they appeared to the defendant at the time he committed the alleged criminal act. If his adversary does anything which is calculated to excite in his mind, while in the exercise of ordinary firmness, a reasonable apprehension that he is about to assault him and to take his life or to inflict great bodily harm, it would seem that the law should permit him to act in obedience to the natural impulse of self-preservation and to defend himself against what he supposes to be a threatened attack, even though it turns out afterwards that he was mistaken: Provided, always, the jury finds that his apprehension was a reasonable one and that he acted with ordinary firmness.” S. v. Waldroop, 193 N. C., 12, 135 S. E., 165; S. v. Terrell, supra.
Applying these principles, exception is well taken to that portion of the charge which reads: “I might meet a man out here on the street and he says, ‘Throw up your hands; I am going to kill you.’ I think he is and believe it. He points a pistol in my face and tells me he is going to kill me, and I shoot him first. It may be he was not going to kill me; that he was playing a joke on me; just trying to have a little fun, and there was no danger at all. If I had reasonable grounds to believe that I was in danger, about to be killed and in good faith believing I was, I have the right to use reasonable force to protect myself. On the other hand, a man meets me on the street and tells me to throw up my hands, he is going to kill me and he meant to do so. I was in actual danger of being killed instantly. If I did not believe it and thought he was joking or playing with me and did not believe it, but because he had thrown a pistol on me on the street in the presence of my acquaintances and made me mad and I flew into a temper and knocked him down and killed him, then I would be guilty at least of manslaughter, because I did not believe I was going to be killed. A man must in good faith believe he is going to be hilled (italics ours) ; then he has the right to use such force as he believes to be necessary to protect himself.”
A similar charge was considered in S. v. Waldroop, supra. What is said there is applicable here. There, as here, the right of self-defense was made to depend entirely upon a reasonable belief that defendant was about to be killed. Here it is specifically declared: “A man must in good faith believe he is going to be killed; then he has the right to use such force as he believes to be necessary to protect himself.” The error in the instruction is the omission of any reference to the apprehension of great bodily harm. This is as much an element of defense *309 as the apprehension of death. Tbe test is, did the defendant have reasonable apprehension to believe, and did he believe, that his life was in danger or that he was about lo receive great bodily harm?
As in tbe Waldroop case, bere there appears in other portions of tbe charge a correct statement of tbe principle of law. Adams, J., speaking to tbe question, there said: “In substance tbe two are contradictory— one including both elements and tbe other only one. £It is well settled that when there are conflicting instructions upon a material point a new trial must be granted, as tbe jury are not supposed to be able to determine when tbe judge states tbe law correctly or when incorrectly. We must assume in passing upon motion for new trial that tbe jury were influenced in coming to a verdict by that portion of tbe charge which is erroneous.’ Edwards v. R. R., 132 N. C., 99; S. v. Barrett, supra.”
For error in tbe charge as indicated there will be a
BaeNhill, J., dissents.