The appellant excepts to and assigns as error nine portions of the court’s charge to the jury; all other exceptions have been abandoned.
We deem it necessary and appropriate in the disposition of this appeal to consider the following portions of the charge:
“To illustrate what I mean, if tonight when you put your car in the garage somebody jumps out in the dark and flashes his pistol on you and says he is going to kill you, you have the right to protect yourself and kill him. It might turn out later that the pistol is not loaded, has no cylinder, but you didn’t know it, and you have the right to take the life of your assailant under these circumstances because you had a right to believe that you were about to be killed.” Exception No. 5.
*692“On the other hand one cannot use the excessive force of taking human life.” Exception No. 6.
“And if you shall have first found an unlawful killing with a deadly weapon, the burden would then be upon the defendant to satisfy you that in shooting the deceased she did not do so unjustified and with malice; and if she has so satisfied you and has not gone further, that would be an unlawful killing and would constitute manslaughter.” Exception No. 9.
We concede that the illustration used, to which the defendant’s fifth exception was taken, does illustrate what is meant by real or apparent danger, but on the other hand it was predicated upon a factual situation wholly unrelated to the facts in the instant case. The statute requires the court, in both criminal and civil actions, to declare and explain the law arising on the evidence in the particular case and not upon a set of hypothetical facts. G.S. 1-180. As a consequence of the use of the above illustration, we think the jury might have been misled, since the deceased did not jump out of the dark or flash a pistol or any other weapon on the defendant.
The sixth exception arises out of the language used by the court in connection with the defendant’s right to expel or remove a person from her home. The court charged that a person in his own home has a right, for a reason or no reason, to order someone off his premises, and the person so ordered has the right to leave; and when one is ordered to leave the premises and refuses to go, then the one so ordering him has the right to use such force as is reasonably necessary to cause the intruder to leave. The court then said: “On the other hand one cannot use the excessive force of taking human life.” This was followed with the statement that these are all abstract statements of the law which may be applicable to the facts in this case, depending upon the facts which the jury might find.
We think the instruction complained of was prejudicial since the justification or nonjustification of the killing of the deceased by the defendant grew out of circumstances connected with the defendant’s request to the deceased and the two Petersons to leave her home. Whether the force used was actually necessary to repel the attack the defendant claims was being made on her, or whether some other or lesser force might have been adequate for her protection, was not the question for the jury to decide, but whether, when she did use the force which resulted in the death of the deceased, she had, under all the circumstances, reasonable cause to believe and did believe that such force was necessary to protect herself from impending danger or great bodily harm. S. v. Rawley, 237 N.C. 233, 74 S.E. 2d 620; S. v. Spruill, 225 N.C. 356, 34 S.E. 2d 142; S. v. Bryant, 213 N.C. 752, 197 S.E. 530; S. v. Terrell, 212 N.C. 145, 193 S.E. 161; 4 Am. Jur., Assault and Battery, section 50, page 152, et seq.
*693Tbe challenge to that portion of tbe charge contained in tbe ninth exception must be upheld. We construe this instruction to mean that if the jury should first find an unlawful killing with a deadly weapon, the burden would then be upon the defendant to satisfy the jury that in shooting the deceased she was justified in doing so and did so without malice; and if she did so satisfy the jury, the killing would still be unlawful and the defendant would be guilty of manslaughter. Such is not the law.
The intentional killing of a human being with a deadly weapon raises two presumptions: first, that the killing was unlawful; and, second, that it was done with malice. S. v. McNeill, 229 N.C. 377, 49 S.E. 2d 733; S. v. Childress, 228 N.C. 208, 45 S.E. 2d 42; S. v. Debnam, 222 N.C. 266, 22 S.E. 2d 562. The killing with a deadly weapon, however, must be intentional to raise these presumptions which are rebuttable. S. v. Gordon, 241 N.C. 356, 85 S.E. 2d 322.
An unlawful killing of a human being with malice, and with premeditation and deliberation, is murder in the first degree; while an unlawful killing of a human being with malice, but without premeditation and deliberation, is murder in the second degree. And the unlawful killing of a human being without malice, and without premeditation and deliberation, is manslaughter. S. v. Benson, 183 N.C. 795, 111 S.E. 869; S. v. Keaton, 206 N.C. 682, 175 S.E. 296; S. v. Utley, 223 N.C. 39, 25 S.E. 2d 195.
If the defendant was justified in shooting the deceased, and did so without malice, the killing was not unlawful and she would be entitled to a verdict of not guilty.
For the reasons pointed out herein, the defendant is entitled to a new trial and it is so ordered.
New trial.
Barnhill, C. J., took no part in the consideration or decision of this case.