#### STATE v. EDWARD W. FLOYD.

(Filed 9 October, 1946.)

Homicide § 16—

While in a prosecution for murder in the first degree the State has the burden of proving each of the essential elements of the crime, it is entitled to avail itself of the presumption of malice upon the showing of an intentional killing with a deadly weapon, with the burden upon it to complete its case by establishing the elements of premeditation and deliberation beyond a reasonable doubt.

*572Appeal by defendant from Burney, J., at April Term, 1946, of N ORTHAMPTON.

Criminal prosecution on indictment charging the defendant with the murder of one Wade Cooke.

On the evening of 10 November, 1945, just after dark, the defendant shot and killed bis father-in-law, Wade Cooke, and his sister-in-law, Rosa Cooke, while they were seated, with other members of the family, at the supper table in their home in Northampton County. A third shot was fired which. injured another sister-in-law and the defendant’s wife. The firearm used was a .22 rifle apparently of the magazine type. The defendant had been drinking, but was not drunk or crazy. He gave as his reason for going berserk: “Sheriff, they have just provoked and aggravated me so long about drinking I wanted to put an end to it.”

The defendant’s plea was that of mental irresponsibility. It was in evidence that two of his uncles committed suicide, and a brother of the defendant died in the insane asylum.

Verdict: Guilty of murder in the first degree.

Judgment: Death by asphyxiation.

Defendant appeals, assigning errors.

Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.

Gay & Midyette for defendant.

Stacy, C. J.

The question for decision is whether error was committed in the following instruction to the jury: “When the killing is shown to be intentional and without legal provocation, and without just cause or excuse, or where the killing is shown to be done with a deadly weapon or in a cruel and brutal manner, then the law implies that it was done with malice.”

It is the position of the defendant that in a prosecution for murder in the first degree, the State must prove every element of the offense, S. v. Locklear, 118 N. C., 1154, 24 S. E., 410, and cannot avail itself .of the presumption of malice arising from an intentional killing with a deadly weapon, as this mounts the crime only to the level of murder in the second degree. G. S., 14-17; S. v. Prince, 223 N. C., 392, 26 S. E. (2d), 875.

Proof of malice is one of the intermediate steps necessary to be taken in a prosecution for murder in the first degree. In taking this step, the State may rely upon the presumption which arises from an intentional killing with a deadly weapon. It is true, the additional elements of premeditation and deliberation, essential to constitute murder in the first degree, are not presumed from an intentional killing with a deadly weapon. These must be established beyond a reasonable doubt, and *573found by the jury, before a verdict of murder in the first degree can be rendered against the accused. S. v. Hawkins, 214 N. C., 326, 199 S. E., 284; S. v. Miller, 197 N. C., 445, 149 S. E., 590. Still this would not deprive the State of the effect of an intervening presumption to the extent that it goes, or of evidence possessing under the law a degree of probative force beyond its natural tendency to produce belief. McNeill v. McNeill, 223 N. C., 178, 25 S. E. (2d), 615; Speas v. Bank, 188 N. C., 524, 125 S. E., 398. “In those cases where the evidence establishes that the killing was with a deadly weapon, the presumption goes no further than that the homicide was murder in the second degree, and if the State seeks a conviction of murder in the first degree, it has the burden of proving beyond a reasonable doubt that the homicide was committed with deliberation and premeditation.” S. v. Perry, 209 N. C., 604, 184 S. E., 545.

A careful perusal of the record leaves us with the impression that no error has been shown, and that the judgment follows the command of the law.

No error.