
    STATE v. L. H. REDDITT.
    (Filed 18 February, 1925.)
    Criminal Law — Assault—Deadly Weapon — Statutes—Burden of Proof— Instructions — Appeal and Error.
    For a conviction finder the provisions of C. S., 4214 for an assault with a deadly weapon, with intent to kill, and inflicting a serious injury, not resulting in death, the burden of proof is on the State to show the various elements of the offense, beyond a reasonable doubt; and it is reversible error for the trial judge to instruct the jury, upon the evidence, that the use of a deadly weapon cast the burden upon the. defendant to disprove his guilt.
    Appeal by defendant from Sinclair, J., at November Term, 1924, of Beaueoet.
    Criminal prosecution, tried upon indictments charging the appealing defendant and his son, D. E. Redditt, with maliciously maiming Tobe Minor (C. S., 4212) and with assaulting him with a deadly weapon, with intent to kill, and inflicting serious injury, not resulting in death. 0. S., 4214. As all the eases grew out of the same occurrence, they were consolidated and tried before the same jury. Both defendants were acquitted on the charg-e of maiming, and the son, D. E. Redditt, was acquitted on the charge of an assault with a deadly weapon, with intent to kill, resulting in serious injury, but the’father, L. H. Redditt, was convicted on this latter charge, and from the judgment pronounced thereon he appeals, assigning errors.
    
      Attorney-General Brummitt and Assistant Attorney-General Nash for the State.
    
    
      W. A. Thompson, Lindsay G. Warren, and Small, MacLean & Bod-man for defendant.
    
   Stacy, J.

The statute under which the appealing defendant was indicted and convicted provides that any person who assaults another (1) with a deadly weapon, (2) with intent to kill, and (3) inflicts serious injury, not resulting in death, shall be guilty of a felony and shall be punishable by imprisonment in the State’s Prison or be worked on the county roads for a period of not less than four months nor more than ten years. C. S., 4214. These three essential elements must be proved in order to warrant a conviction under the statute (S. v. Crisp, 188 N. C., 800), and the burden is on th'e State to establish them all, beyond a reasonable doubt, where the defendant enters a plea of “not guilty” to the charge contained in the bill of indictment, as was done in the instant case. S. v. Singleton, 183 N. C., 738; Speas v. Bank, 188 N. C., p. 527.

The following excerpt from the charge forms the basis of one of the defendant’s exceptive assignments of error:

“In this case, gentlemen of the jury, when the defendants admit that they fired the guns which wounded Tobe Minor, the burden of proof thereupon shifts to the defendants to satisfy the jury that they were justifiable in shooting him. In other words, after having admitted that they shot him, the law presumes that they are guilty of assault with a deadly weapon, with intent to kill, and there is no dispute in this case that serious injury was inflicted upon him, and in that case the burden rests upon the defendants to satisfy the jury from such facts and circumstances as may appear from the evidence in the case that they acted in self-defense, and, therefore, were justifiable in shooting him.”

This instruction, we think, must be held for error. The admission or proof of an assault with a deadly weapon, resulting in serious injury, but not in death, cannot be said, as a matter of law, on the present record, to establish a presumption of felonious intent, or intent to kill, sufficient to overcome the presumption of innocence, raised by a plea of traverse, and cast upon tbe defendant tbe burden of disproving bis guilt. S. v. Wilbourne, 87 N. C., 529; S. v. Falkner, 182 N. C., 793.

Tbe intent to kill was denied by tbe defendants, it being tbeir contention that they discharged tbeir guns, loaded with bird sbot, to repel an attack made upon tbem in wbicb it reasonably appeared tbat tbey were in danger of losing tbeir lives or sustaining great bodily barm. Tbe case is dissimilar to an indictment for murder, where malice is presumed from tbe deliberate use of a deadly weapon; for there it could be said.that tbe defendant intended tbe consequences of bis act, but here tbe intent to kill, if present, was not followed by such grievous consequences. Hence, it cannot be said, as a matter of law, tbat tbe defendant intended to kill; bis act fell short of tbat intention, and no killing occurred. Tbe law will not ordinarily presume a murderous intent where no homicide is committed. This is a matter for tbe State to prove. S. v. Allen, 186 N. C., 302; S. v. Hill, 181 N. C., 558.

The case of S. v. Knotts, 168 N. C., 173, in no way conflicts with our present position, for there tbe Court was discussing tbe presumption of malice wbicb arises from tbe deliberate use of a deadly weapon, and not tbe necessary intent to kill, as prescribed by tbe statute now before us.

Tbe facts, adduced on tbe bearing, were amply sufficient to carry tbe case to tbe jury, but it was error to require tbe defendant to disprove tbe alleged intent to kill. This entitles tbe defendant to a new trial; and it is so ordered.

New trial.  