State v. . Sheek

WiNBORNE, J. While defendant stresses for error many assignments, we are of opinion that exceptions three and four to portions of the charge of the court below are, in the respects here indicated, well taken. The charge to which exception three relates is as follows: “Now, gentlemen, there is another principle of law applicable in second degree murder and that is this: (Where it has been proven by the State or admitted by the defendant that one killed another and killed him with a deadly weapon, that raises two presumptions. That raises a presumption that the killing was unlawful and that there was malice, and then the • burden rests upon the defendant, gentlemen, not to satisfy you gentlemen beyond a reasonable doubt, or by the greater weight of the evidence or by a preponderance of the evidence, but simply satisfy you gentlemen that the killing was justified on his part.)” *814 Then after stating contention of tbe State that deceased died as result of knife wounds, and after defining a deadly weapon, the court further charged: “So the State argues you ought not to have any doubt that there was a killing; that this defendant did it; that he inflicted the wounds that brought about death a few hours later of the deceased; that this was a deadly weapon and then, nothing else appearing, the defendant would be guilty of murder in the second degree, as the burden then rests upon him to satisfy you gentlemen that he was justified in what he did do.” Exception 4. When the intentional killing of a human being with a deadly weapon is admitted, or is established by the evidence, the burdén is upon the defendant to show to the satisfaction of the jury facts and circumstances sufficient to justify or excuse the homicide, or to reduce it to manslaughter. S . v. Quick, 150 N. C., 820, 64 S. E., 168; S. v. Atwood, 176 N. C., 704, 97 S. E., 12; S. v. Gregory, 203 N. C., 528, 166 S. E., 387; S. v. Terrell, 212 N. C., 145, 193 S. E., 161; S. v. Robinson, 213 N. C., 273, 195 S. E., 830; S. v. Bright, 215 N. C., 537, 2 S. E. (2d), 541, and numerous other cases. The vice in the charge given is that, in order to escape the presumption arising from an intentional killing with a deadly weapon, the burden is on defendant to justify his acts. While doubtless a slip of the tongue, this denies to him the opportunity, to which he is entitled, to show facts and circumstances in mitigation sufficient to reduce the crime to manslaughter. The defendant does not plead justification or excuse. He pleads not guilty, and contends that, in any event, the evidence for the State shows facts and circumstances in mitigation sufficient to reduce the crime to manslaughter. Defendant further contends, with respect to these and other portions of the charge to which exceptions are also taken, that all the evidence, considered in the light most favorable to the State, is susceptible of only one inference, that is, that the killing was the result of passion produced by a fight, and that under the principle stated in S. v. Quick, supra; S. v. Baldwin, 152 N. C., 822, 68 S. E., 148; and S. v. Gregory, supra, the court as a matter of law should have limited the jury to a verdict no greater than manslaughter. We are of opinion, however, that the evidence is not so clear as to admit of decision as a matter of law. We refrain from discussing other exceptions to matters which may not recur on another trial. For errors pointed out, let there be a New trial.