Both before and after he had introduced evidence, the defendant moved to dismiss the prosecution as in case of nonsuit, and duly excepted to the court's denial of his motion. The exceptions, therefore, require a consideration of the entire evidence. C. S. 4643; S. v. Killian,173 N.C. 792. The defendant admitted that he fired the fatal shot, but testified that he acted in self-defense. The intentional killing of a human being with a deadly weapon implies malice, and, nothing else appearing, constitutes murder in the second degree. When this implication is raised by an admission or proof of the fact of killing the burden is on the defendant to show to the satisfaction of the jury facts *Page 848 and circumstances sufficient to excuse the homicide or to reduce it to manslaughter. S. v. Capps, 134 N.C. 627; S. v. Barrett, 132 N.C. 1005; S.v. Quick, 150 N.C. 820; S. v. Yates, 155 N.C. 450; S. v. Orr, 175 N.C. 773;S. v. Brinkley, ante, 720. For these reasons the defendant's own testimony necessarily forestalled his motion to dismiss the action.
A witness for the State was permitted to testify, over the defendant's objection, concerning statements made by the defendant's brother, Morris Pasour, relative to certain marks or "scratches" on the body of the deceased. The defendant's exception, which was duly entered, is without merit. The evidence was competent in contradiction and impeachment of Morris's preceding testimony. The other exceptions require no discussion. Dr. Wilkins properly indicated the brother that admitted the killing, and evidence as to any peculiarity of the deceased a short time before his death, so far as the record discloses, was irrelevant and remote. Besides, the proposed answer of the witness is not shown.
Upon examination of the exceptions and the record, we find
No error.
Cited: S. v. Reagan, 185 N.C. 712; S. v. Marion, 200 N.C. 718; S. v.Gregory, 203 N.C. 531; S. v. Keaton, 206 N.C. 686; S. v. Norton,222 N.C. 420; S. v. Norris, 242 N.C. 53; S. v. Gay, 251 N.C. 80.
(795)