#### STATE v. JIM WALDROOP.

(Filed 21 December, 1927.)

Homicide — Instructions—Murder—Manslaughter—Self-Defense.

The charge of the judge to the jury in this action for the commission of a homicide is approved on the principles of second-degree murder, manslaughter and self-defense in the same case as reported in 193 N. 0., p. 12.

Appeal by defendant from Stack, J., and a jury, at April Term, 1927, of Cherokee.

No error.

*752 Attorney-General Brummitt and Assistant Attorney-General Nash for the Slate.

Moody & Moody for defendant.

ClaeicsoN, J.

This case was bere before, S. v. Waldroop, 193 N. C., p. 12. Tbe writer of tbe main opinion said, at p. 14: “Tbe record discloses evidence tending to establish eacb of tbe three degrees of felonious homicide as well as tbe defendant’s right to acquittal on tbe ground of self-defense.”

Tbe defendant was convicted of manslaughter and a new trial granted, two Justices dissenting — not on tbe law as stated, but tbe interpretation put on tbe instruction. In tbe present case defendant was found “guilty of murder in tbe second degree.” In neither trial did tbe State ask for conviction of defendant for murder in tbe first degree, although, from the record, there was evidence on tbe part of tbe State, if believed by tbe jury, sufficient to sustain a conviction.

As to tbe evidence bearing on self-defense, tbe court below charged as follows: “But if be has satisfied you from tbe evidence that tbe killing was without malice, but has failed to satisfy you that tbe killing was not unlawful, then be would be guilty of manslaughter and that would be your verdict. But, if be has rebutted, to your satisfaction, both of the presumptions raised by tbe law from tbe killing with a deadly weapon, and has satisfied you, gentlemen of tbe jury, that be bad been assaulted by tbe deceased with a pistol, and that by reason of such assault, while free from blame himself and in tbe exercise of ordinary firmness, be actually feared and bad reasonable grounds to fear that bis life was in danger or that be was in danger of great bodily barm, and that be used such force only as was necessary, or such force as appeared to him reasonably necessary at tbe time to save bis life or to protect himself from great bodily barm, such necessity, real or apparent, to be determined by you and not him, upon all tbe facts and circumstances as they reasonably appeared to him at tbe time and under these conditions, if you find that tbe defendant took tbe life of tbe deceased, tbe homicide would be excusable and your verdict would be ‘not guilty.’ ”

In tbe charge tbe court below was following tbe opinion of this Court on tbe former appeal. On tbe whole record we can find no prejudicial or reversible error.

No error.