OPINION
DAUGHTREY, Judge.The defendant, Van David Pride, was convicted of second degree murder in the shooting death of his brother, Alvin (Alvie Joe) Pride. He was also found guilty of employing a firearm in the offense. At a separate hearing, he was sentenced to 40 years imprisonment, enhanced by a five year sentence for use of a firearm. On appeal, he contends (1) that he was not properly advised of his Miranda rights before making a statement that was later introduced against him, (2) that the trial court erred in denying his motion for a judgment of acquittal on the charge of second degree murder, and (3) that his sentence was not imposed in accordance with Tennessee’s recently enacted sentencing *104statute, T.C.A. §§ 40-35-101 et seq. We find no reversible error in connection with the issues raised on appeal, and we therefore sustain the conviction.
The record shows that Pride made two statements to police, one shortly after his arrest and another at the stationhouse. As the state points out, the defendant failed to file a proper pretrial motion to suppress these two statements, in violation of Rule 12(b)(3), Tennessee Rules of Criminal Procedure. For this reason, and in the absence of good cause for the delayed motion, the trial court should have refused to rule on the merits of the question. The judge nevertheless determined that Pride had been adequately warned of his Miranda rights before making his first statement to police, that he waived those rights and that this waiver carried over to the second statement which was recorded and then transcribed.
The first words spoken on the audiotape of the second statement are those of Pride’s interrogator, warning Pride that.he has a- right to have an attorney present during questioning. Defense counsel now asserts that the failure to advise the defendant further that anything he might say could be used against him was a violation of Miranda and that Pride’s subsequent statement to police should be suppressed. The record shows, however, that Pride had already been given his Miranda warnings before making his initial statement to police, and there is nothing to suggest that the advice of rights on the prior occasion was incomplete. Our law recognizes that an accused need not be given repeated Miranda warnings once he has been advised of his rights and has waived them. Reaves v. State, 523 S.W.2d 218, 220 (Tenn.Cr.App.1975). We thus find no error in the trial court’s decision to overrule the defendant’s motion to suppress.
Nor did the trial judge err in declining to grant a judgment of acquittal on the second degree murder charge. The defendant insists that at most his brother’s homicide constituted manslaughter, but the proof suggests otherwise. David and Alvie Joe had been “horsing around” in the front yard of their home when the- scuffle got out of hand, and the two became angry. No blows were exchanged, but each of the brothers offered to “whip” the other. The defendant, determined “not to let Alvie Joe whip him,” went to his bedroom and picked up a semi-automatic .22 rifle which he had placed under his bed. When his brother “came through the door making like ‘The Hulk’,” the defendant fired a shot at him.
The father of the two men, Jessie Pride, was sleeping in the same bedroom at the time the defendant entered. He tried to wrestle the gun away from his son, and it went off again. David Pride looked at his brother lying at the foot of his father’s bed, put down the gun, and walked out of the house. He was subsequently arrested down the street at a neighbor’s house.
The victim was still alive when medical personnel and law enforcement officials reached the scene. He later died of a gunshot wound to the abdomen, fired at what the pathologist estimated to be a range of 0-24 inches.
To convict of second degree murder, the state must prove that the accused unlawfully and willfully killed another and that the killing was malicious. Fox v. State, 1 Tenn.Cr.App. 308, 441 S.W.2d 491, 495-96 (1968). Our law recognizes that if a person, “upon a sudden impulse of passion, without adequate provocation.., kills another willfully and maliciously,” the killing constitutes second degree murder. Bailey v. State, 479 S.W.2d 829, 834 (Tenn.Cr.App.1972). Moreover, the element of malice may be sufficiently shown by the use of a deadly weapon. State v. Gilbert, 612 S.W.2d 188, 190 (Tenn.Cr.App.1980).
It is abundantly clear that the jury in this case found inadequate provocation for the defendant’s act of arming himself and shooting his brother. In this respect, the defendant’s statements to police were sufficient to establish the elements of the offense. Indeed, the degree of his malice and willfulness can be seen by the fact that his father tried but was unable to prevent *105him from firing the rifle a second time. The record also shows that the defendant left the house without making any effort to assist his brother, who was still alive at the time. Under these circumstances, we are unable to say that the trial court erred in letting the case go to the jury on the theory of second degree murder.
At the sentencing hearing, the state proved that the defendant had been convicted in a case that occurred in 1979 and involved the infliction of a life-threatening gunshot wound to one Patrick Delarosa; also wounded at the same time, but less seriously, was a second man, Marvin Wilson. The defendant pleaded guilty to reduced charges of attempt to commit first degree murder and attempt to commit aggravated assault, and to a weapons charge. The state argued that these prior offenses, occurring within five years of the current conviction, qualified Pride as a persistent offender under T.C.A. § 40-35-106. The prosecution further argued that Pride was an aggravated offender under T.C.A. § 40-35-107 because both the current offense and the prior offenses involved bodily injury to the victims.
The trial court agreed, finding that Pride was both a persistent and an aggravated offender. The judge therefore imposed a Range II sentence, as required by § 40-35-109(c).
The defendant now argues that under § 40-35-106(b)(l), the persistent offender label is inapplicable if the’ prior felonies were “committed as part of a single course of conduct within a period of twenty-four (24) hours during which there was no substantial change in the nature of the criminal objective,” which is obviously the case here. However, as the state further points out, the exception in (b)(1) is inoperative if the prior offenses resulted in “bodily harm to more than one person,” which is also the case here.* We thus conclude that the defendant qualifies as a persistent offender for sentencing purposes and that a Range II sentence was properly imposed on him, pursuant to the provisions of § 40-35-109(c).
This being the ease, it is unnecessary to determine whether or not Pride was properly found to be an aggravated offender as well, and we pretermit that question.
The judgment of the trial court is affirmed.
BYERS and CORNELIUS, JJ., concur."Bodily harm" is not defined by § 40-35-106, but in § 40-35-107 the essentially similar term "bodily injury" is defined to include "a cut, abrasion, bruise, burn, or disfigurement, physical pain; illness or impairment of the function of a bodily member, organ or mental facility." Thus, the fact that Marvin Wilson was struck by pellets from the shotgun blast, even though his wounds may not have been serious, would be sufficient to satisfy the "exception to the exception” of § 40—35—106(b)(1).