The defendant admitted the intentional slaying of the deceased with a deadly weapon and relied for his acquittal upon his plea of self-defense. He contended, also, that in any view of the testimony satisfactory evidence of mitigation appeared, and that conviction of a-higher offense than manslaughter was not warranted. The defendant in apt time requested the court to instruct the jury that the fact that the' defendant had a pistol in his pocket, but had made no unlawful use of it prior to the attack upon him by the deceased, would not deprive the-defendant of his legal right of self-defense. S. v. Hough, 138 N. C., 663, 50 S. E., 109. The court declined to give the instruction requested, but-on this point charged the jury as follows: “I further charge you, gentlemen, that if the prisoner had prepared a deadly weapon with intention-, of using it if he got into a fight with the deceased, and went into the-house and dining room having made this decision, and for a conflict with the deceased, Young, and met him there and got in a gambling game and quarreled over it and thereby he provoked a fight with him in which both used deadly weapons, one a shotgun and the other a pistol, and that as a result thereof he shot' the pistol inflicting a wound which killed the-deceased, then it would be your duty to return a verdict of guilty of murder in the second degree, provided you so find beyond a reasonable doubt.” Defendant assigns error in these rulings of the court.
While the instruction complained of contains a correct statement of law when applicable to and supported by facts in evidence, it must be held for error here, since there was no evidence upon which to base the instruction given, or to justify the charge to the jury, if the facts as thus stated were found, to return verdict of guilty of murder in the second degree.
All the evidence seemed to indicate a friendly gathering at a marriage-supper, where the social amenities of the occasion indicated felicitation® and good food. As result of an impromptu dice game the defendant won the sum of 25c, and the deceased became greatly incensed and moved to attack the defendant with a loaded gun. The shooting that ensued proved fatal to the deceased. There was no evidence that the defendant had *558prepared a weapon and gone to the house where the deceased was for the purpose of using it in a difficulty with him, or had provoked a fight with him.
To the evidence that the defendant had a pistol in his pocket when he went to the House of Will Young to greet the bride and bridegroom, the court inadvertently gave undue point and emphasis, in this instruction, by the suggestion of purposeful preparation of a deadly weapon as constituting ground for returning verdict of murder in the second degree. We think this had a prejudicial effect upon the defendant’s pleas that the shooting was done in self-defense, or under circumstances which compelled the conclusion of mitigation to manslaughter. Nor does it appear that the converse or alternative view of this phase of the ease was stated to the jury. S. v. Fairley, 227 N. C., 134, 41 S. E. (2d), 88.
In Real Estate Co. v. Moser, 175 N. C., 255, 95 S. E., 498, it was said: “The instruction embodies a correct and a very wholesome rule of law, but we do not think there is any sufficient evidence to support it.” And in Seagroves v. Winston, 167 N. C., 206, 83 S. E., 251: “The submission of any question of fact to a jury without sufficient evidence to warrant a finding is error.” See also S. v. Love, 187 N. C., 32, 121 S. E., 20; S. v. Wyont, 218 N. C., 505, 11 S. E. (2d), 473; Curlee v. Scales, 223 N. C., 788, 28 S. E. (2d), 576.
As there must be a new tidal, the other exceptions noted by defendant and brought forward in his appeal have not been considered.
New trial.