#### STATE v. J. D. FLEMING.

(Filed 6 April, 1932.)

1. Homicide G lb — Killing with deadly weapon raises x>resumptions of malice and that killing was unlawful.

Where upon the trial for a homicide the solicitor does not ask for a conviction of murder in the first degree hut of murder in the second degree or manslaughter, and the defendant admits he killed the deceased with a pistol but contends that the deceased was attacking him with a knife, and that the killing was in self-defense, the killing with the deadly weapon raises the presumptions of malice and that the killing was unlawful, both of which presumptions the defendant must rebut by his evidence, and where he rebuts the presumption of malice only, the presumption that the killing was unlawful remains, making the crime manslaughter.

2. Criminal Law L e — Exclusion of testimony will not be held for reversible error where other evidence of same import is admitted.

Where, in a prosecution for homicide, the prisoner pleads self-defense, the exclusion of evidence, over his objection, tending to show the deceased had a grudge against him is not reversible error when other evidence to the same effect is admitted at the trial without objection.

3. Criminal Law I g — Instruction in this case held to conform to C. S., 564, and was sufficiently full.

Where, in a prosecution for homicide, the court states the essential evidence in the case in a plain and concise manner, and explains the law arising thereon, the instruction meets the requirements of C. S., 56’4, and will not be held for error, there being no request by the defendant for special instructions.

*513*4.*Cmninal Law L e — Court may fix maximum and minimum sentence within statutory allowance in his discretion which is not reviewable.

The question of the imposition of a sentence on the prisoner convicted of manslaughter within the maximum and minimum allowed by statute, C. S., 4201, is within the discretion of the trial court and is not reviewable on appeal.

Appeal by the defendant from *Oglesby, J.,*at October Term, 1931,-of Surry.

No error.

Tbe defendant in this action was convicted of manslaughter.

It was adjudged by the court that he be confined in the State’s prison for a term of not less than fifteen or more than twenty, years.

The defendant appealed from the judgment to the Supreme Oourt, assigning errors at the trial.

*Attorney-General Brummitt and Assistant Attorney-General Beawell for the State.*

*Folger & Folger for defendant.*

CONNOR, J.

At the trial of this action, the defendant admitted that he killed the deceased with a deadly weapon, to wit, a pistol. He contended, however, that at the time he fired his pistol at the deceased, the deceased was assaulting him with a deadly weapon, to wit, a knife. He relied upon his plea of self-defense, and contended that for that reason he was not guilty of murder or of manslaughter, as charged in the indictment. There was evidence which strongly supported the contentions of the defendant, and to show that the homicide was excusable because committed by the defendant in self-defense; there was evidence to the contrary, which tended to contradict the testimony of the defendant, who testified as a witness in his own behalf, and to show that the homicide was at least manslaughter, if not murder in the second degree. The solicitor for the State announced at the trial that he did not contend that the homicide was murder in the first degree, but did contend that it was murder in the second degree or manslaughter. The evidence, both for the State and for the defendant, was submitted to the jury under a charge which appears in the statement of case on appeal certified to this Court.

Defendant’s assignments of error based on his exceptions to the rulings of the trial judge with respect to the evidence cannot be sustained. The error, if any, in sustaining the objection of the State to the testimony of the defendant that the deceased had a “grudge” against him, was not prejudicial to the defendant, for the reason that abundant evidence to that effect was subsequently offered by the defendant, and admitted by the judge without objection by the State. There was no error in the *514refusal of tbe judge to sustain tbe objection of defendant to tbe introduction of tbe sbirt worn by tbe deceased at tbe time be was sbot and billed by tbe defendant, as evidence tending' to sbow tbe location on tbe person of tbe deceased of tbe fatal wound. Tbe sbirt was clearly competent as evidence for that purpose.

Assignments of error based upon defendant’s exceptions to tbe charge of tbe court to tbe jury, duly noted in tbe record, and discussed in tbe brief filed in bis bebalf in tbis Court, cannot be sustained. Tbe court properly instructed tbe jury as to tbe law witb respect to- tbe burden assumed by tbe defendant wben be admitted tbat be killed tbe deceased witb a deadly weapon, and relied upon bis plea of self-defense for a verdict of not guilty. In *S. v. Fowler,*151 N. C., 731, 66 S. E., 567, tbe defendant was convicted of manslaughter, notwithstanding there was evidence at tbe trial tending to sustain bis plea of not guilty, because tbe homicide was committed in self-defense. In tbat case it is said: “An unlawful killing is manslaughter, and wben there is tbe added element of malice it is murder in tbe second degree. When tbe defendant takes up tbe laboring oar, be must rebut both presumptions — tbe presumption that tbe killing was unlawful and tbe presumption tbat it was done witb malice. If be stops wben be has rebutted tbe presumption of malice, tbe presumption tbat tbe killing was unlawful still stands, and unless rebutted, tbe defendant is guilty of manslaughter. Tbis is a fair deduction from tbe cases in tbis State.” Tbis statement of tbe law is quoted witb approval in *S. v. Miller,*185 N. C., 679, 116 S. E., 416. Tbe principle is well settled in tbe law of tbis State.

Tbe contention of tbe defendant tbat tbe judge in bis charge to tbe jury failed to comply witb tbe mandatory provisions of C. S., 564, cannot be sustained. Tbe charge as set out in full in tbe statement of tbe case on appeal is in full compliance witb tbe statute. Tbe essential evidence offered at tbe trial is stated in a plain and correct manner, together witb an explanation of tbe law arising thereon. Tbis is all tbat is reT quired by tbe statute. There were no requests by tbe defendant for special instructions, and no occasion for such requests, as tbe law involved in tbe case is simple and easily applied.

We find no error in tbe trial of tbe action. Tbe judgment must be affirmed. Tbe judgment prescribing a minimum and a maximum term for tbe imprisonment of tbe defendant as punishment for tbe crime of which be was convicted by tbe jury, is within tbe discretion of tbe judge. C. S., 4201. We cannot review tbe judgment in tbat respect. *S. v. Jones,*181 N. C., 543, 106 S. E., 827; *S. v. Woodlief,*172 N. C., 885, 90 S. E., 137.

No error.