#### STATE v. DAN BAILEY and PAUL BAILEY.

(Filed 11 October, 1933.)

1. Homicide G b—

An intentional killing with a deadly weapon raises presumptions that the killing was unlawful and was done with malice, constituting murder in the second degree.

2. Homicide G e: E a — Evidence of guilt of second-degree murder held sufficient, defendants’ pleas of self-defense being for the jury.

Evidence that defendants and deceased engaged in a fight about 6:30 o’clock in the evening, the defendants being armed and the deceased unarmed, and that deceased then went to another’s house and secured a gun, and that deceased met defendants that night about 9 :15 on a path near the scene of the first encounter, and that both defendants and deceased fired shots, one of the defendants firing the shot resulting in deceased’s death, id held, sufficient to be submitted to the jury and to sustain a conviction of second-degree murder, the defendants’ plea of self-defense being for the determination of the jury under correct instructions from the court, and held further, defendants’ exceptions to the admission of evidence of the fight earlier in the evening cannot be sustained, such evidence being helpful to them on their pleas of self-defense.

Appeal by defendants from Daniels, J., at July Term, 1933, of Lee.

Criminal prosecution tried upon indictment charging tbe defendants with tbe murder of one Price Womack.

Tbe defendants are brothers. They bad a fight with Price Womack about 6 :30 o’clock on tbe evening of 8 October, 1932, over some liquor. They kicked and cuffed Womack about considerably. Paul had a shotgun, Dan a pistol, and Price was unarmed at tbe time. Following tbe difficulty, Womack -went to tbe borne of Clint Jones and got a shotgun, *256intending to pursue tbe matter further. He met tbe defendants again about 9 :15 that night on a patb near tbe railroad tracks in tbe town of Sanford, not far from tbe scene of tbe first difficulty. Here tbey engaged in a duel. Botb defendants sbot at Womack, but apparently Paul inflicted tbe death wound. Tbe gun which tbe deceased bad was found by bis side with an empty shell in it. Evidently be bad sbot also.

It is tbe contention of tbe defendants that tbey were waylaid by Womack and that tbey sbot him in their own proper self-defense.

Yerdict: Guilty of murder in tbe second degree as to botb defendants.

Judgment: Imprisonment in tbe State’s prison as to each defendant for a term of not less than fifteen nor more than twenty years.

The defendants appeal, assigning errors.

Attorney-General Brummük and Assistant Attorney-General Seawell for the State.

E. B. Hoyle for defendants.

Stacy, C. J.

Proof or admission of an intentional killing with a deadly weapon raises two presumptions against tbe killer: first, that tbe killing was unlawful; and, second, that it was done with malice. This is murder in tbe second degree. S. v. Robinson, 188 N. C., 784, 125 S. E., 617.

Upon these presumptions tbe jury was justified in rendering tbe verdict it did in tbe instant case. Tbe defendants can only regret that their pleas of self-defense were not proved to tbe satisfaction of tbe twelve. S. v. Willis, 63 N. C., 26.

Tbe principles applicable to an unintentional killing, or homicide by misadventure, discussed in S. v. Gregory, 203 N. C., 528, 166 S. E., 387, do not arise on tbe present record.

Tbe exceptions discussed on brief piresent no new question of law or one not heretofore settled by a number of decisions. In no view of tbe case could tbe demurrers to tbe evidence have been sustained; and tbe testimony relative to tbe fight earlier in tbe evening was helpful to tbe defendants on their pleas of self-defense. Indeed, so far as tbe deceased was concerned, tbe fight did not end until be was killed. With him, tbe fatal encounter was but a continuation of tbe original altercation. S. v. Bryson, 203 N. C., 728, 166 S. E., 897.

The charge taken as a whole is free from reversible error. Tbe verdict and judgment will be upheld.

No error.