Defendant assigns as error, among others, these portions of the charge of the court to the jury:
“You may, as you find the facts to be from the evidence under the instruction of law of the court, return one of two verdicts; either guilty of murder in the first degree, or not guilty.” Exception No. 26.
“The court instructs you that there is no evidence in this case of murder in the second degree or manslaughter. It is the law of this State that a murder which shall be perpetrated by means of lying in wait shall be deemed to be murder in the first degree.” Exception No. 27.
“Lying in wait is being in ambush for the purpose of murdering another. It implies a hiding or secreting of one’s self. To constitute lying in wait within the meaning of the statute law, which the court has read to you, providing that all murder perpetrated by means of lying in wait shall be murder in the first degree, three things must concur, to wit, waiting, watching and secrecy.” Exception No. 28.
“The State of'North Carolina contends that you should find and be satisfied beyond a reasonable doubt from the evidence in this case that on 23 February, this year, in Brunswick County, the defendant Cause as a result of what took place between him and H. J. "Williamson, in front of Williamson’s house in the afternoon, and of Williamson striking him and practically knocking him down, and of Williamson shooting him and wounding him in the hands, went and procured a 12-gauge shotgun and procured a shell in order to shoot H. J. Williamson; that he had sufficient intelligence to procure the shotgun and to procure a shell and to put this shell in the shotgun and about an hour after he and Williamson had been in front of Williamson’s home to go to the home of Williamson; that he looked through the window and saw Mr. Williamson and had enough intelligence to know that it was Mr. Williamson, and that standing out on the ground, looking through the window there at Williamson, recognized Williamson; that the defendant was there in ambush for the purpose of murdering H. J. Williamson; that he was waiting, watching and in secrecy; that he deliberately aimed at him, and while lying in wait under those circumstances willfully and intentionally shot- H. J. Williamson, killing him with the shotgun wounds, and that *30be is guilty of murder in the first degree, and that you should be so satisfied by the greater weight from the evidence in the case, and return as your verdict guilty of murder in the first degree.” Exception No. 30.
In connection with the above instructions, defendant contends that the court erred (1) in restricting the jury to the return of one of two verdicts, — guilty of murder in the first degree, or not guilty, without including a third, — guilty of murder in the second degree, and (2) in stating the contention of the State with respect to the burden of proof.
It is the law in this State that where all the evidence on the trial for murder tends to show murder in the first degree in that a murder has been perpetrated by lying in wait, G. S., 14-17, the trial court may instruct the jury to render only one of two verdicts, guilty of murder in the first degree or not guilty. S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Myers, 202 N. C., 351, 162 S. E., 764. But where on such trial the evidence tends to show that the intentional killing was with a deadly weapon, and more than one inference may be drawn from the evidence in respect to lying in wait, it is error for the trial court to fail to charge the jury that a verdict of murder in the second degree may be returned. G. S., 15-172. S. v. Newsome, supra. S. v. Merrick, 171 N. C., 788, 88 S. E., 501; S. v. Lee, 206 N. C., 472, 174 S. E., 288.
Applying the definition of lying in wait as given by the court to the evidence offered on the trial below, we are of opinion that more than one reasonable inference may be drawn therefrom, and that there is error in the failure of the court to include murder in the second degree in the verdicts the jury might return in the case.
Moreover, the rule of law as to the degree of proof set forth in stating the contentions of the State as shown in the portion of the charge to which Exception No. 30 relates, is manifestly erroneous. Ordinarily a misstatement of contentions must be called to the attention of the court at the time, or else it will be deemed to be waived. But not so as to statements of a contention with respect to applicable law. McGill v. Lumberton, 215 N. C., 752, 3 S. E. (2d), 324, and cases cited. S. v. Calcutt, 219 N. C., 545, 15 S. E. (2d), 9; Stanley v. Hyman-Michaels Co., 222 N. C., 257, 22 S. E. (2d), 570.
Doubtless the use of the words “greater weight of evidence” instead of “beyond reasonable doubt” was a slip of the tongue or an error in transcribing. Nevertheless, it appears in the record, and we must accept it as' it comes to us.
As the case goes back for a new trial, it is not amiss to say that should the jury find from the evidence beyond a reasonable doubt that the defendant killed the deceased with a deadly weapon, but failed to find from the evidence beyond a reasonable doubt that he killed the deceased while lying in wait, the law would presume no more than murder in the *31■second degree, and the burden would be upon the State to show premeditation and deliberation to make out the capital offense.
For reasons stated, let there be a
New trial.