Of the exceptions upon which defendant challenges the trial in Superior Court, it is sufficient to consider these two, which entitle defendant to a new trial.
In the course of the charge, after defining murder in the first degree, murder in the second degree, and manslaughter, the court instructed the jury:
“Now, for instance, as we started on the controversy the burden was on the State on the whole of the trial at that time to satisfy you Gentlemen first, among other things, before any burden, so to speak, left the State and rests or was cast as a laboring oar to the defendant, to satisfy you first that this defendant, or prisoner as he is called in a capital case, took the life of Miss Ola Lowder with a deadly weapon. (Now as an illustration, if during the progress of the trial you become satisfied beyond a reasonable doubt that Zeb Burrage, the prisoner, did take Miss Ola Lowder’s life with a deadly weapon, this pistol which I stated to you as a matter of law is a deadly weapon, then under that showing made by the State he was then looked upon by the State as guilty of murder in the second degree, nothing else appearing, then so far as that charge was concerned there thereafter was no burden on the State on the question of murder in the second degree, so he must — for when that showing is made by the State beyond a reasonable doubt or is admitted by the prisoner charged with the crime then he must — the law presuming malice from the use of a deadly weapon- — -then there is cast upon him the burden of going forward and excluding the presumption that the State lodges against him under that showing made or of rebutting that presumption.)”
*133Exception is directed to so much thereof as is in parentheses.
And, again, the court continued:
“(Now that presumption arises of his guilt of murder in the second degree if he admits in the trial or if it is proven beyond a reasonable doubt that this life was taken with this pistol, so then the laboring oar is east to the prisoner to show you such evidence or such fact as would remove the alleged crime of murder and to bring it down to manslaughter or which would abrogate and destroy it altogether and to so justify you in returning a verdict of not guilty.)”
To this instruction defendant excepts.
The vice common to these instructions is the failure to instruct that it is the intentional killing of a human being with a deadly weapon which raises the presumption of malice.
Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. These definitions of murder in the first degree, murder in the second degree and manslaughter are too firmly imbedded in the law to require citation of authority. Moreover, the law is well established in this State that the intentional killing of a human being with a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree. And when this implication is raised by an admission or proof of the fact of an intentional 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. Capps, 134 N. c., 622, 46 S. E., 730; S. v. Quid, 150 N. C., 820, 64 S. E., 168; S. v. Benson, 183 N. C., 795, 111 S. E., 869; S. v. Gregory, 203 N. C., 528, 166 S. E., 387; S. v. Keaton, 206 N. C., 682, 175 S. E., 296; S. v. Terrell, 212 N. C., 145, 193 S. E., 161; S. v. Robinson, 188 N. C., 784, 125 S. E., 617; 8. v. Mosley, 213 N. C., 304, 195 S. E., 830; S. v. Debnam, 222 N. C., 266, 22 S. E. (2d), 562; S. v. Utley, ante, 39.
In the Keaton case, supra, the rule is stated in this manner: “If a defendant who has intentionally killed another with a deadly weapon would rebut the presumption arising from such showing or admission, he must establish to the satisfaction of the jury the legal provocation which will take from the crime the element of malice and thus reduce it to manslaughter, or which will excuse it altogether on the ground of self-defense, unavoidable accident or misadventure.”
In the Debnam case, supra, the Court, speaking through Seawell, J., said: “Where the defense is based on the theory of accidental shooting, and intentional use is not admitted, but, on the contrary, denied, and *134becomes tbe crux of tbe controversy, tbe court must be meticulous in instructing tbe jury tbat tbe intentional use of tbe deadly weapon is necessary to raise tbe presumption.”
Applying these principles to tbe case in band, defendant does not admit an intentional killing of Ola Lowder. He denies tbat be intended to kill ber and contends tbat sbe was shot in a struggle over a pistol be bad in bis band. In tbe light of this contention, failure to instruct tbe jury tbat tbe presumption only arises upon an admission, or tbe proof of tbe fact of an intentional killing with a deadly weapon is prejudicial error.
Moreover, tbe second portion to which exception is taken places burden upon defendant “to show such evidence or such fact as would remove tbe alleged crime of murder.” Tbe alleged crime is murder in tbe first degree. Tbe jury may fairly have understood tbat tbe burden was on defendant to show tbat be was not guilty of murder in tbe first degree. This is not bis burden.
It is not deemed necessary to consider other exceptions.
For errors pointed out, let-there be a
New trial.