#### STATE v. RAMP SMITH.

(Filed 26 March, 1924.)

1. Criminal Law — Deadly Weapon — Courts—Matters of Law — Questions for Jury.

An instrument used in an assault which is likely to produce death or inflict great bodily harm upon the one assaulted, in the manner of its use, with regard to the condition of the one assaulted, may be held a deadly weapon, as a matter of law, and is not to be submitted to the jury as an issue of fact unless its use, under the circumstances, may or may not have been likely to produce fatal results.

2. Same — Murder—Manslaughter—Instructions—Malice—Presumptions.

Where the defendant was tried for murder in the second degree and convicted of manslaughter, or the unlawful killing of a human being without malice and without premeditation and deliberation, under evidence tending to show that he had struck on the head and killed the deceased with a baseball bat while engaged in a fight with him, an instruction that the law presumes malice from the use of a deadly weapon is not erroneous.

3. Same — Self-defense—Excusable Homicide — Burden of Proof.

Where it is admitted or established that the prisoner on trial for murder had killed the deceased with a deadly weapon, but without premedi*470tation and deliberation, the law raises the presumption, first, that the hill-ing was unlawful, and second, that it was done with malice, which is murder in the second degree; it then being for the prisoner to show to the satisfaction of the jury the facts that would reduce the crime from second-degree murder to- manslaughter, or to justify himself upon the plea of self-defense.

Appeal by defendant from Calvert, J., at January Term, 1924, of Pender.

Criminal prosecution, tried upon an indictment charging the defendant with murder in the second degree.

From a verdict of manslaughter, and judgment pronounced thereon, the defendant appeals, assigning errors.

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

H. McClammy and Emmett H. Bellamy for defendant.

Stacy, J.

The defendant killed one J. 0. Singleton by striking him' on the head with a baseball bat. The two men had been engaged in a fight, and the defendant contended that he slew the deceased in his own proper self-defense. The jury convicted the defendant of manslaughter, which is the unlawful killing of a human being without malice and without premeditation and deliberation. S. v. Baldwin, 152 N. C., 822.

Any instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. S. v. Craton, 28 N. C., p. 179. The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself. S. v. Archbell, 139 N. C., 537; S. v. Sinclair, 120 N. C., 603; S. v. Norwood, 115 N. C., 789.

Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly within the foregoing definition is one of law, and the Court must take the responsibility of so declaring. S. v. Sinclair, supra. But where it may or may not be likely to produce fatal results, according to the manner of .its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury. S. v. West, 51 N. C., 505; Krchnavy v. State, 43 Neb., 337. A pistol or a gun is a deadly weapon (S. v. Benson, 183 N. C., 795); and we apprehend a baseball bat should be similarly denominated if viciously used, as under the circumstances of this case. S. v. Brown, 67 Iowa, 289; Crow v. State, 21 L. R. A. (N. S.), 497, and note.

*471Tbe defendant claimed tbat be struck-'Singleton in self-defense; and appellant’s chief exception is tbe one directed to tbe following portion of bis Honor’s charge: “Tbe law presumes malice from tbe intentional slaying of a human being with a deadly weapon, and where tbe defendant admits tbe killing or tbe evidence satisfies tbe jury beyond a reasonable doubt tbat one has slain bis fellow-man intentionally with a deadly weapon, tbe law imposes upon.tbe defendant tbe burden of disproving malice, if tbe defendant would reduce tbe grade of tbe offense from murder to manslaughter. In other words, be must in such a case satisfy tbe jury, but not beyond a reasonable doubt, tbat tbe slaying was without malice, and if be would further entitle himself to a verdict of not guilty, tbe law imposes upon him tbe burden of excusing tbe killing upon tbe principle of self-defense.”

We find no error in this instruction.

When it is admitted or established by evidence tbat tbe defendant killed tbe deceased with a deadly weapon, tbe law raises two presumptions against him: first, tbat tbe killing was unlawful, and second, tbat it was done with malice; and an unlawful killing with malice is murder in tbe second degree. S. v. Fowler, 151 N. C., 732.

Tbe law then casts upon tbe defendant tbe burden of proving to tbe satisfaction of tbe jury, not by tbe greater weight of tbe evidence nor beyond a reasonable doubt, but simply to tbe satisfaction of tbe jury (S. v. Carland, 90 N. C., 675), tbe legal provocation tbat will rob tbe crime of malice and thus -reduce it to manslaughter, or tbat will excuse it altogether upon tbe grounds of self-defense, accident or misadventure. S. v. Little, 178 N. C., 722.

Tbe record presents no reversible error, and hence tbe verdict and judgment entered below must be upheld.

No error.