concurring. I concur in the conclusion of the court that there was no. evidence of premeditation to go to the jury, and that, therefore, the prisoners should not have been convicted of murder in the first degree. There seems to be such a vital misapprehnsion of the evidence, on the part of some of us, that it seems eminently proper that the eidence should be published in full. If I took the same view of the evidence as some of my brethern, either of its substance or its lawful deductions, I would certainly vote for affirmance, as I have no scruples in hanging a man who is *752guilty of premeditated murder. But there must be some proof of such premeditation. At common law the killing with a deadly weapon implied malice, and where such killing was admitted or proved beyond a reasonable doubt, the prisoner was presumed to be guilty of murder, and the burden rested upon him of showing such facts as he relied on in mitigation or excuse. State v. Byrd, 121 N. C., 684, and cases therein cited.
There was then but one degree of murder, and that was a capital felony. This was changed by Chapter 85 of the Public Laws of 1893, which divided the crime of murder into two degrees', the second degree being punishable only by imprisonment. Since the passage of said Act, the presumption arising from the killing with a deadly weapon extends only to murder in the second degree; and the State is still required to prove beyond a reasonable doubt the facts necessary to bring the homicide within the statutory definition of murder in the first degree. State v. Booker, 123 N. C., 713, and cases therein cited.
I am aware that this construction of the Act of 1893 was not unanimous at first, as shown in State v. Fuller, 114 N. C., 885, but it was settled before I came upon the bench, and needed not, though it has received, miy cordial approval. If it is correct, these prisoners could not have been found guilty of murder in the first degree in the absence of any proof of premeditation. It should be remembered that Melton Belfield., who brought on the fight and admittedly shot the deceased, is not the one now on trial. He has paid for his crime with the penalty of his life, having died of wounds received in his arrest for this killing. The prisoner now before us is John Belfield, who, according to the testimony of Peele, the principal witness for the State, took hold of Melton’s arm and tried to get him to leave the store, evidently in order to avoid any difficulty. Acting .the peace-maker is surely no evidence of premeditation.
*753It is always ¿ matter of regret and concern to me that the' question of life and death should depend upon my single vote, but I have no right to shirk the responsibilities of my postion, and must decide the question in strict accordance with my convictions of duty.
I concur in the opinion of the Court to the extent that there should be a' new trial.