Tbe record before us discloses an aggravated, vicious assault. Tbe defendant, it is true, bad been provoked. Yet it is apparent be was inspired by unreasoning passion, aroused by liquor, and that bis assault upon tbe deceased went far beyond tbe requirements of legitimate self-defense. Certainly tbe testimony is amply sufficient to repel a demurrer and motion to dismiss under G-.S. 15-173.
Notwithstanding tbe nature of tbe assault and tbe evidence tending to show that tbe defendant continued to kick and stomp tbe deceased after be was down helpless on tbe floor, tbe court below cautiously and prudently gave him tbe full benefit of bis plea of self-defense. Exceptions to tbe charge directed to this phase of tbe case are without merit.
Tbe cause was not tried on tbe theory defendant was killed by tbe use of a deadly weapon. Therefore, it was not necessary for tbe court to instruct tbe jury as to what constitutes a deadly weapon or to charge it as to whether, under tbe circumstances disclosed by tbe testimony, defendant’s “feet and bands” could or could not be deemed to be such a weapon within tbe meaning of tbe law.
Tbe State was not given tbe benefit of tbe presumption created by proof of 'an intentional homicide with a deadly weapon. Instead tbe court instructed tbe jury that before it could return a verdict of murder in tbe second degree, it must find, beyond a reasonable doubt “that tbe defendant unlawfully, willfully and feloniously killed Lola Lyda, and that with malice ...”
Tbe court further instructed tbe jury that if it failed to find tbe defendant guilty of murder in tbe second degree, then it should weigh tbe evidence to determine whether be was guilty of manslaughter, and that before it could render a verdict of manslaughter it must find beyond a reasonable doubt that defendant “unlawfully, willfully and feloniously Filled” tbe deceased. In this connection tbe court fully and correctly explained tbe law in respect to sudden passion, excessive force, apprehension of danger, and other matters to be considered on tbe charge of murder in tbe second degree and manslaughter.
Tbe charge of tbe court, both on tbe count of murder in tbe second degree and manslaughter, is so clearly in substantial accord with our former decisions tbe citation of authorities would serve no useful purpose. Tbe other exceptions are formal in nature. They require no discussion.
In tbe trial below we find
No error.