#### STATE v. JOE FOWLER.

(Filed 23 December, 1909.)

1. Murder — Manslaughter—Deadly Weapon — Unlawful Killing— Malice — Presumption.

When the killing with a deadly weapon' is established or admitted, and the plea is self-defense, two presumptions arise: (1) that the killing was unlawful; and (2) that it was done with malice.

2. Murder — Manslaughter—Unlawful Killing — Malice.

An unlawful killing is manslaughter, and when it is done with malice, it is at least murder in the second degree. .

3. Same — Self-Defense—Presumption—Burden of Proof.

When the killing with a deadly weapon is established or admitted, and the defendant’s plea is self-defense, it is for him to rebut the presumption that it was unlawful or done with malice, and upon his rebutting only the presumption of malice, the presumption that it was unlawfully done yet stands, making him guilty of manslaughter.

*7324. Same — Instructions—Without Prejudice — Harmless Error.

When the killing with a deadly weapon is shown, and the plea is self-defense, it is not error to defendant’s prejudice for the court to refuse to charge that there was no evidence to warrant a verdict of manslaughter, the jury having rejected defendant’s evidence of self-defense and found him guilty of manslaughter, . as otherwise it would have been their duty to convict of murder ' in the second degree. •

5. Murder — Manslaughter—Instructions—Construed as a Whole— Harmless Error.

A charge to the jury is not solely to be interpreted by picking out therefrom certain expressions; and when, upon a trial for the unlawful killing of another, it is upon the defendant, under the plea of self-defense, to rebut the presumption that the killing was unlawful and with malice, and the charge is correct when construed as a whole, the expression, that if the jury were “left in doubt” as to whether defendant slew in self-defense they ^hould return a verdict of manslaughter, is not of itself reversible error.

Walker, J., concurs in result.

Appeal from Justice, J., October Term, 1909, of Polk.

Indictment for murder in second degree. Tbe defendant was convicted of manslaughter, and from tbe judgment pronounced, appealed.

Attorney-General and George L. J ones for tbe State.

Shipman & Williams for defendant.

BROWN, J.

Tbis appeal presents two assignments of error.

1. Did tbe judge err in submitting to the jury the question of manslaughter? Under State v. Quick, 150 N. C., 820, such an error is without prejudice 4o tbe defendant, and be cannot complain. When, as in tbis case, tbe plea is self-defense and tbe killing with a deadly weapon is established or admitted, two presumptions arise — (1) that tbe billing was unlawful; (2) that it was done with malice.

An unlawful billing is manslaughter, and when there is tbe added element of malice it is murder jn tbe second degree. "When tbe defendant tabes up tbe laboring oar be must rebut both presumptions — tbe presumption that tbe billing was unlawful and tbe presumption that it was done with malice. If be stops when be has rebutted tbe presumption of malice, tbe presumption that tbe billing was unlawful still stands, and, unless rebutted, tbe defendant is guilty of manslaughter. This is a fair deduction from the cases in this State. State v. Hagan, 131 N. C., 802; State v. Brittain, 89 N. C., 501, 502.

At tbe request of defendant, tbe judge charged tbe jury very explicitly that if they should find from tbe evidence offered by *733tbe defendant tbat tbe billing occurred under circumstances claimed by bim and testified to by bis witnesses, tbey should return a verdict of not guilty.

Tbe jury discarded defendant’s plea, and if, as now argued by bim, there was nothing in tbe evidence to warrant a verdict of manslaughter, it was tbe duty of tbe jury to convict of murder in second degree.

It necessarily follows tbat, under such circumstances, tbe defendant cannot complain of a verdict for manslaughter, a lesser degree of homicide. An error on tbe side of mercy is not reversible. But-we think there is in this case, as in State v. Quick, evidence upon which a verdict of manslaughter may be supported.

2. His Honor stated to tbe jury in one part of bis charge tbat if tbey were “left in doubt” as to whether tbe defendant slew in self-defense, tbey should return a verdict of manslaughter.

This was erroneous, and if tbe objectionable words stood alone, as in State v. Clark, 134 N. C., 698, we would award a new trial.

In tbe case at bar, taking tbe charge as a whole, it is a very clear and luminous exposition of tbe law of homicide.

A charge is not to be interpreted by picking out an expression here and there. “It is to be considered as a whole, in the same connection in which it Was given and upon the presumption that the jury did not overlook any portion of it. If, when so construed, it presents the law fairly and correctly to the jury, it will afford no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous.”. 2 Thompson on Trials, sec. 2407; State v. Exum, 138 N. C., 602; Everett v. Spencer, 122 N. C., 1010; Westbrook v. Wilson, 135 N. C., 402.

His Honor gave this prayer in the words in which it was expressed: “That the prisoner is not required to rebut the presumption of malice arising from the killing with a deadly weapon beyond a reasonable doubt, but to the satisfaction of the jury.” The instruction that the plea of self-defense must be sustained only to the satisfaction of the jury was repeated so often and made so plain in the charge that we cannot think that the jurors were misled.

No error.

"Walker, J., concurs in result.