State v. . Childress
45 S.E.2d 42
N.C.
1947
Check Treatment
Stacy, C. J.

The defendant is charged with the murder of his wife. He pleads uxoricide by misadventure. There is evidence to support the charge and there is evidence to support the defendant’s plea. There is also evidence of manslaughter, i.e., of an unlawful killing without malice. S. v. Staton, 227 N. C., 409. In these circumstances, the statute, G. S., 15-170, requires that the “less degree of the same crime” be submitted to the jury with proper instructions. S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605; S. v. Sheek, 219 N. C., 811, 15 S. E. (2d), 282.

*210 Tbe general rule of practice is, that when it is permissible under the indictment, as here, to convict the defendant of “a less degree of the same crime,” and there is evidence to support the milder verdict, the defendant is entitled to have the different views arising on the evidence presented to the jury under proper instructions, and an error in this respect is not cured by a verdict finding the defendant guilty of a higher degree of the same crime, for in such case, it cannot be known whether the jury would have convicted of the lesser degree if the different views, arising on the evidence, had been correctly presented in the court’s charge. S. v. Lee, 206 N. C., 412, 174 S. E., 288; S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Merrick, 171 N. C., 788, 88 S. E., 501.

An intentional killing with a deadly weapon raises two presumptions against the killer, first, that the killing was unlawful, and, second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. S. v. Floyd, 226 N. C., 571, 39 S. E. (2d), 598; S. v. DeGraffenreid, 223 N. C., 461, 27 S. E. (2d), 130; S. v. Burrage, 223 N. C., 129, 25 S. E. (2d), 393. It should be noted that these presumptions arise only from an intentional killing with a deadly weapon; and, even then, they may be rebutted — in part by showing no malice which would reduce the offense to manslaughter, and altogether by showing self-defense, unavoidable accident or misadventure, which would excuse the homicide and deprive it of any unlawfulness. S. v. Snead, ante, 37; S. v. Prince, 223 N. C., 392, 26 S. E. (2d), 875; S. v. Keaton, 206 N. C., 682, 175 S. E., 296. The presumptions do not arise from the mere fact of a killing with a deadly weapon. S. v. Debnam, 222 N. C., 266, 22 S. E. (2d), 562; S. v. Gregory, 203 N. C., 528, 166 S. E., 387; S. v. Horton, 139 N. C., 588, 51 S. E., 945. The deadly purpose of the use of the weapon, when accomplished, is what gives rise to the presumptions; and, unless admitted, this must be established by proof. S. v. Ellison, 226 N. C., 628, 39 S. E. (2d), 824; S. v. Baker, 222 N. C., 428, 23 S. E. (2d), 340; S. v. Redman, 217 N. C., 483, 8 S. E. (2d), 623.

The intensity of proof required to establish an intentional killing with a deadly weapon, where not admitted, is “beyond a reasonable doubt.” The degree of proof required to rebut the presumption arising from an intentional killing with a deadly weapon, when established or admitted, is “to the satisfaction of the jury.” S. v. Harris, 223 N. C., 697, 28 S. E. (2d), 232.

The exception addressed to the failure of the court to submit to the jury the lesser degree of the crime charged, i.e., manslaughter, is well interposed and must be sustained.

New trial.