#### STATE v. DOLL LITTLE.

(Filed 12 November, 1919.)

1. Homicide — Murder—Self-defense—Burden of Proof — Quantum of Proof.

it is reversible error for tbe judge to instruct tbe jury, upon a trial for a homicide, tbat tbe defendant must prove beyond a reasonable doubt tbat tbe defendant bad shot tbe deceased under bis reasonable apprehension tbat it was necessary to save bis own life or himself from great bodily barm, it being only required tbat be satisfy tbe jury of tbe truth of the facts upon which be relies in defense.

2. Homicide — Murder—Evidence.

Evidence, upon tbe trial of a homicide, tbat tbe prisoner drew bis pistol and shot tbe deceased four times, inflicting death, without evidence tbat tbe deceased was armed, is sufficient to sustain a verdict of murder in the first degree.

Appeal by defendant from Shaw, J., at April Term, 1919, of ANSON.

Tbe defendant was convicted of murder in tbe first degree, and from the judgment upon such conviction appealed to this Court.

*723 Attorney-General Manning and Assistant Attorney-General Nash for the State.

McLendon & Govington, B. V. Henry, and A. M. Staclc for defendant.

BbowN, J.

Tbe prisoner was convicted of tbe murder of one Will R. Honeycutt on 19 September, 1918, and tbe record of tbe trial presents sixteen exceptions; one to tbe refusal to admit testimony, ten to tbe judge’s refusal to charge as requested, and five to bis charge as given. We will consider only two.

The homicide occurred at a cotton gin at Morven in Anson County. Tbe evidence tended to prove that tbe prisoner and tbe deceased bad an altercation about priority in getting under tbe sheds and to tbe gin with their wagons. There is no evidence that tbe deceased was armed. All tbe evidence proved that tbe defendant drew a pistol and shot tbe deceased, and that tbe deceased was struck four times and died from tbe wounds. There was much evidence introduced, which it is unnecessary to set out.

Tbe prisoner requested tbe court to charge tbe jury that there was no evidence of murder in tbe first degree. We cannot sustain this exception, but will not discuss tbe evidence, as it might prejudice tbe prisoner on another trial.

In tbe charge to which tbe defendant excepted, tbe court told tbe jury, among other things, “In passing upon tbe question, you can put yourselves in tbe position of tbe defendant and see whether or not be reasonably apprehended it was necessary to shoot in order to save bis own life or himself from great bodily- barm, and if be has satisfied you, from all tbe evidence, beyond a reasonable doubt, if be has satisfied you that be did not provoke tbe difficulty and did. not enter into it willingly, and after getting into it, that hq used no more force than was reasonably necessary, the court instructs you that if you find these to be tbe circumstances under which be killed him, that it would be justifiable homicide, and it would be your duty to return a verdict of not guilty.”

This instruction was erroneous and well calculated to injure tbe prisoner. Tbe burden of proof is always upon tbe State to satisfy tbe jury beyond a reasonable doubt in order to convict of a criminal offense. But where tbe defendant undertakes to reduce tbe killing to murder in tbe second degree, or to manslaughter, be is only required to satisfy tbe jury of the truth of the facts upon which be relies. This is elementary now in this State. In tbe brief of tbe learned Assistant Attorney-General, be admits that tbe expression “beyond a reasonable doubt” is plainly error, but contends it is a mere slip of tbe tongue, and that it was corrected in tbe charge.

*724Wq fail to see that it was immediately corrected, and so explained to the jury. It is a very important rule of evidence, as there is quite a difference between satisfying the jury of the truth of a fact and of convincing it beyond a reasonable doubt.

We think the prisoner is entitled to a

New trial.