Tbe court in its charge to tbe jury made tbe following statement:
“Now tbe defendant in this case, Gentlemen of tbe Jury, admits tbe killing with a deadly weapon and attempts to justify tbe killing by bis plea of self-defense and evidence which be insists and contends should satisfy you that be killed tbe deceased, not with malice and not unlawfully, but killed tbe deceased in tbe proper self-defense of bis life and person; therefore, tbe Court will give you certain rules of law applicable to tbe plea of self-defense as entered in this case by tbe defendant.”
And again later in tbe charge tbe court stated :
“Now, Gentlemen of tbe Jury, tbe defendant in this case while upon tbe stand testified in bis own behalf, and bis counsel have argued to you and admitted in their arguments to you, that tbe defendant killed the deceased with a deadly weapon to wit: a pistol, nothing else appearing that would make tbe defendant guilty of murder in tbe second degree.”
These excerpts from tbe charge are made tbe subject of exceptive assignments of error.
Tbe defendant entered a plea of not guilty and it does not appear from tbe record that this plea was thereafter withdrawn or modified by tbe defendant or bis counsel. There was no formal plea of self-defense but tbe defendant did offer evidence for tbe purpose of showing that be did not shoot tbe deceased with malice and that be shot under circumstances wbicb made bis act excusable and not unlawful.
*485The defendant, while a witness in his own behalf, testified that he shot the deceased. The State likewise offered the evidence of two police officers who testified that the defendant made similar statements to them. However, we have searched the record in vain for any statement by the defendant while on or off the witness stand which would constitute an admission that he killed the deceased. Hon constat it is admitted that the defendant shot the deceased, it does not follow of necessity that he inflicted a fatal wound. The burden of so showing rested upon and remained with the State throughout the trial.
We may concede that when the court below stated to the jury as a fact that the defendant had admitted that he killed the deceased and that his counsel in their argument to the jury had likewise admitted the killing, it was the duty of the defendant to call the court’s attention to the erroneous statements and that the defendant’s failure so to do, ordinarily, would constitute a waiver of the specific exceptions relied upon. Royal v. Dodd, 177 N. C., 206, 98 S. E., 599; S. v. Lance, 149 N. C., 551; S. v. Davis, 134 N. C., 633; S. v. Tyson, 133 N. C., 692; S. v. Brown, 100 N. C., 519.
Here it is apparent that the statement of the court as to the admission made by the defendant is based upon a misconstruction of his testimony to which the court referred in connection therewith. The error is harmful, therefore, for the reason that the court, acting under the misapprehension that the killing was admitted, failed to instruct the jury properly in respect to the burden of proof. The whole burden of the issues submitted to the jury was placed upon the defendant. At no time was the jury instructed that the State was required to show that the deceased came to his death as a proximate result of the pistol shot wound inflicted by the defendant. The existence of this fact was assumed. See S. v. Maxwell, 215 N. C., 32, 1 S. E. (2d), 125. Likewise, while there is sufficient evidence in the record to sustain a finding by the jury that the defendant killed the deceased with a deadly weapon, the jury has not been permitted to weigh and consider this evidence under instructions that the burden of so showing rested upon the State.
As the court stated to the jury that counsel for the defendant had argued that the defendant killed the deceased with a .deadly weapon and there was no correction thereof at the time, we may assume that this argument was made. It is for the judge to say what occurred during the trial. S. v. Lance, supra. Even so, such admission made by counsel during the argument when the defendant had no opportunity to protest or deny the admission is not sufficient to justify the court in assuming that an unlawful killing with a deadly weapon is admitted by the defendant. Speaking to the subject in Hicks v. Mfg. Co., 138 N. C., 319, Hoke, J., says: “Admissions of fact by an attorney only bind a client *486when they are distinct and formal and made for the express purpose of dispensing with proof of a fact on the trial.”
For the failure of the court to properly instruct the jury on the burden of proof and its failure to require the jury to find beyond a reasonable doubt, upon the evidence offered, that the defendant killed the deceased with a deadly weapon, before casting any burden upon the defendant to go forward with proof tending to mitigate the killing or to excuse it altogether, there must be a
Clakksow, J., dissents.