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. The defendant killed one J. O. 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. *Page 471
The defendant claimed that he struck Singleton in self-defense; and appellant's chief exception is the one directed to the following portion of his Honor's charge: "The law presumes malice from the intentional slaying of a human being with a deadly weapon, and where the defendant admits the killing or the evidence satisfies the jury beyond a reasonable doubt that one has slain his fellow-man intentionally with a deadly weapon, the law imposes upon the defendant the burden of disproving malice, if the defendant would reduce the grade of the offense from murder to manslaughter. In other words, he must in such a case satisfy the jury, but not beyond a reasonable doubt, that the slaying was without malice, and if he would further entitle himself to a verdict of not guilty, the law imposes upon him the burden of excusing the killing upon the principle of self-defense."
We find no error in this instruction.
When it is admitted or established by evidence that the defendant killed the deceased with a deadly weapon, the law raises two presumptions against him: first, that the killing was unlawful, and second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. S. v. Fowler, 151 N.C. 732.
The law then casts upon the defendant the burden of proving to the satisfaction of the jury, not by the greater weight of the evidence nor beyond a reasonable doubt, but simply to the satisfaction of the jury (S.v. Carland, 90 N.C. 675), the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or that will excuse it altogether upon the grounds of self-defense, accident or misadventure. S.v. Little, 178 N.C. 722.
The record presents no reversible error, and hence the verdict and judgment entered below must be upheld.
No error.