SHARP, J.
Defendant asserts,
inter alia,
that he is entitled to a new trial because (1) the judge erred in his charge with reference to the
quantum
of proof required of defendant in order to reduce murder in the second degree to manslaughter or to establish the defense of self-defense and (2) the judge failed to submit to the jury the issue of defendant’s guilt of involuntary manslaughter.
The judge explained to the jury that if defendant intentionally shot Sawyer with a pistol and thereby caused his death, the law presumed that the killing was unlawful and done with malice and, nothing else appearing, defendant would be guilty of murder in the second degree; that if defendant would rebut the presumptions arising from such a killing he must establish to the satisfaction of the jury the legal provocation which would take from the crime the element of malice and thus reduce it to manslaughter or excuse the killing altogether on the grounds of self-defense. The judge then contrasted the State’s burden, proof beyond a reasonable doubt, with defendant’s burden, proof to the satisfaction of the jury. After explaining that proof beyond a reasonable doubt is the highest
quantum
of proof known to our law and that such intensity is not required of a defendant, the judge charged:
“But the defendant does not meet the requirements of law when he satisfies the jury merely by the greater weight of the evidence of the truth of the facts he relies on in mitigation, justification or ex
cuse. By the greater weight of the evidence means simply evidence that, when compared with other evidence, is more convincing or evidence that carries greater assurance than that which is offered in opposition. And when the term ‘to the satisfaction of the jury/ is used it is considered to bear a stronger intent of proof than by the greater weight of the evidence or preponderance of the evidence.
“So to prove facts to the satisfaction of the jury requires a higher degree of proof and signifies something more than belief founded on the greater weight of the evidence but does not require as high a degree or as strong, intensive proof as beyond a reasonable doubt.”
Defendant excepted to the foregoing portion of the charge, which is clearly erroneous. Instructions in practically identical language have been held to be prejudicial error in
State v. Fowler,
268 N.C. 430, 150 S.E. 2d 731;
State v. Matthews,
263 N.C. 95, 138 S.E. 2d 819;
State v. Prince,
223 N.C. 392, 26 S.E. 2d 875, and also in
State v. Calloway,
1 N.C. App. 150, 160 S.E. 2d 501. These cases enunciate and reiterate the rule — established in our law for over one hundred years,
State v. Willis,
63 N.C. 26 (1868) —-that when the burden rests upon an accused to establish an affirmative defense or to rebut the presumption of malice which the evidence has raised against him, the
quantum
of proof is to the satisfaction of the jury — not by the greater weight of the evidence nor beyond a reasonable
doubt
— -but
simply to the satisfaction of the jury.
Even proof by the greater weight of the evidence — a bare preponderance of the proof — may be sufficient to satisfy the jury, and the jury alone determines by what evidence it is satisfied.
State v. Prince, supra.
If there be evidence sufficient to establish an affirmative defense or to rebut the presumptions which arise against the defendant when a killing results from his intentional use of a deadly weapon, “[T]he accepted formula
and the one that should be used if risk of error is to be avoided,
is that the defendant has the burden of proving his defense (or mitigation) ‘to the satisfaction of the jury — not by the greater weight of the evidence nor beyond a reasonable doubt — but simply to the satisfaction of the jury.’ ” Stansbury, N. C. Evidence § 214 (2d Ed. 1963). (Emphasis added.)
Erroneous though the challenged instruction was, it does not entitle defendant to a new trial for, demonstrably, it was harmless. First, the verdict of murder in the first degree established that defendant had unlawfully killed sawyer with malice, premeditation, and deliberation.
State v. Moore,
275 N.C. 198, 166 S.E. 2d 652. Defendant assigns no error in the charge as it related to murder in the
first or second degree. The error related to the
quantum
of proof required to reduce second-degree murder to manslaughter or to excuse the killing on the ground of self-defense. “Prejudice could not come from such a charge, if erroneous, unless defendant had been convicted of murder in the second degree and there had been evidence of facts or circumstances in mitigation or excuse of the killing.”
State v.
Lipscomb, 134 N.C. 689, 697, 47 S.E. 44, 46. Ordinarily, when the jury is instructed that it may find defendant guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty, and the verdict is guilty of murder in the second degree, an error in the charge on manslaughter will require a new trial. In such event it cannot be known whether the verdict would have been manslaughter if the jury had been properly instructed. But where, as here, the jury was properly instructed as to both degrees of murder and yet found defendant guilty of murder in the first degree rather than the second degree, it is clear that error in the charge on manslaughter was harmless. In
State v. Munn,
134 N.C. 680, 47 S.E. 15, the jury found “that beyond all reasonable doubt the prisoner slew the deceased willfully, deliberately and with premeditation, and was guilty of murder in the first degree. The State (had) thus satisfied them of facts raising the crime above murder in the second degree, which only was presumed from the (intentional) killing with a deadly weapon. If there were error in the charge as to mitigation below murder in the second degree, it was therefore immaterial error.”
Id.
at 682, 47 S.E. at 16. Similarly, when the jury in this case became convinced beyond a reasonable doubt that defendant, after having decided to take Sawyer’s life, intentionally and unlawfully shot and killed him, the
quantum
of proof by which a defendant is required to rebut the presumption of malice which arises when death results from the intentional use of a deadly weapon becomes academic and irrelevant.
Second, defendant was not entitled to an instruction upon self-defense or mitigation. In
State v. Utley,
132 N.C. 1022, 43 S.E. 820, the defendant was convicted of murder in the second degree. The judge charged the jury that the defendant was required to prove' mitigating circumstances beyond a reasonable doubt. The court said that, unless it was harmless, this error would require a new trial and it was not harmless
if
“in any aspect of the case the jury could have rendered a verdict of manslaughter under the law.”
Id.
at 1024, 43 S.E. at 821. Looking at the evidence in the light most favorable to the defendant, the court held'there was no such evidence and affirmed the verdict.
In this case the evidence is insufficient to show that defendant
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SHARP, J.
Defendant asserts,
inter alia,
that he is entitled to a new trial because (1) the judge erred in his charge with reference to the
quantum
of proof required of defendant in order to reduce murder in the second degree to manslaughter or to establish the defense of self-defense and (2) the judge failed to submit to the jury the issue of defendant’s guilt of involuntary manslaughter.
The judge explained to the jury that if defendant intentionally shot Sawyer with a pistol and thereby caused his death, the law presumed that the killing was unlawful and done with malice and, nothing else appearing, defendant would be guilty of murder in the second degree; that if defendant would rebut the presumptions arising from such a killing he must establish to the satisfaction of the jury the legal provocation which would take from the crime the element of malice and thus reduce it to manslaughter or excuse the killing altogether on the grounds of self-defense. The judge then contrasted the State’s burden, proof beyond a reasonable doubt, with defendant’s burden, proof to the satisfaction of the jury. After explaining that proof beyond a reasonable doubt is the highest
quantum
of proof known to our law and that such intensity is not required of a defendant, the judge charged:
“But the defendant does not meet the requirements of law when he satisfies the jury merely by the greater weight of the evidence of the truth of the facts he relies on in mitigation, justification or ex
cuse. By the greater weight of the evidence means simply evidence that, when compared with other evidence, is more convincing or evidence that carries greater assurance than that which is offered in opposition. And when the term ‘to the satisfaction of the jury/ is used it is considered to bear a stronger intent of proof than by the greater weight of the evidence or preponderance of the evidence.
“So to prove facts to the satisfaction of the jury requires a higher degree of proof and signifies something more than belief founded on the greater weight of the evidence but does not require as high a degree or as strong, intensive proof as beyond a reasonable doubt.”
Defendant excepted to the foregoing portion of the charge, which is clearly erroneous. Instructions in practically identical language have been held to be prejudicial error in
State v. Fowler,
268 N.C. 430, 150 S.E. 2d 731;
State v. Matthews,
263 N.C. 95, 138 S.E. 2d 819;
State v. Prince,
223 N.C. 392, 26 S.E. 2d 875, and also in
State v. Calloway,
1 N.C. App. 150, 160 S.E. 2d 501. These cases enunciate and reiterate the rule — established in our law for over one hundred years,
State v. Willis,
63 N.C. 26 (1868) —-that when the burden rests upon an accused to establish an affirmative defense or to rebut the presumption of malice which the evidence has raised against him, the
quantum
of proof is to the satisfaction of the jury — not by the greater weight of the evidence nor beyond a reasonable
doubt
— -but
simply to the satisfaction of the jury.
Even proof by the greater weight of the evidence — a bare preponderance of the proof — may be sufficient to satisfy the jury, and the jury alone determines by what evidence it is satisfied.
State v. Prince, supra.
If there be evidence sufficient to establish an affirmative defense or to rebut the presumptions which arise against the defendant when a killing results from his intentional use of a deadly weapon, “[T]he accepted formula
and the one that should be used if risk of error is to be avoided,
is that the defendant has the burden of proving his defense (or mitigation) ‘to the satisfaction of the jury — not by the greater weight of the evidence nor beyond a reasonable doubt — but simply to the satisfaction of the jury.’ ” Stansbury, N. C. Evidence § 214 (2d Ed. 1963). (Emphasis added.)
Erroneous though the challenged instruction was, it does not entitle defendant to a new trial for, demonstrably, it was harmless. First, the verdict of murder in the first degree established that defendant had unlawfully killed sawyer with malice, premeditation, and deliberation.
State v. Moore,
275 N.C. 198, 166 S.E. 2d 652. Defendant assigns no error in the charge as it related to murder in the
first or second degree. The error related to the
quantum
of proof required to reduce second-degree murder to manslaughter or to excuse the killing on the ground of self-defense. “Prejudice could not come from such a charge, if erroneous, unless defendant had been convicted of murder in the second degree and there had been evidence of facts or circumstances in mitigation or excuse of the killing.”
State v.
Lipscomb, 134 N.C. 689, 697, 47 S.E. 44, 46. Ordinarily, when the jury is instructed that it may find defendant guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty, and the verdict is guilty of murder in the second degree, an error in the charge on manslaughter will require a new trial. In such event it cannot be known whether the verdict would have been manslaughter if the jury had been properly instructed. But where, as here, the jury was properly instructed as to both degrees of murder and yet found defendant guilty of murder in the first degree rather than the second degree, it is clear that error in the charge on manslaughter was harmless. In
State v. Munn,
134 N.C. 680, 47 S.E. 15, the jury found “that beyond all reasonable doubt the prisoner slew the deceased willfully, deliberately and with premeditation, and was guilty of murder in the first degree. The State (had) thus satisfied them of facts raising the crime above murder in the second degree, which only was presumed from the (intentional) killing with a deadly weapon. If there were error in the charge as to mitigation below murder in the second degree, it was therefore immaterial error.”
Id.
at 682, 47 S.E. at 16. Similarly, when the jury in this case became convinced beyond a reasonable doubt that defendant, after having decided to take Sawyer’s life, intentionally and unlawfully shot and killed him, the
quantum
of proof by which a defendant is required to rebut the presumption of malice which arises when death results from the intentional use of a deadly weapon becomes academic and irrelevant.
Second, defendant was not entitled to an instruction upon self-defense or mitigation. In
State v. Utley,
132 N.C. 1022, 43 S.E. 820, the defendant was convicted of murder in the second degree. The judge charged the jury that the defendant was required to prove' mitigating circumstances beyond a reasonable doubt. The court said that, unless it was harmless, this error would require a new trial and it was not harmless
if
“in any aspect of the case the jury could have rendered a verdict of manslaughter under the law.”
Id.
at 1024, 43 S.E. at 821. Looking at the evidence in the light most favorable to the defendant, the court held'there was no such evidence and affirmed the verdict.
In this case the evidence is insufficient to show that defendant
slew Sawyer in the heat of passion engendered by provocation which the law deems adequate to depose reason.
State v. Merrick,
171 N.C. 788, 88 S.E. 501;
State v. Merrick,
172 N.C. 870, 90 S.E. 257. Indeed, defendant does not make that contention. He now asserts that the killing was either unintentional or in self-defense. However, his testimony does not invoke the doctrine of self-defense,
State v. Davis,
225 N.C. 117, 33 S.E. 2d 623;
State v. Rawley,
237 N.C. 233, 74 S.E. 2d 620, or tend to show accident,
State v. Phillips,
264 N.C. 508, 142 S.E. 2d 337;
State v. Faust,
254 N.C. 101, 118 S.E. 2d 769.
The remaining question is, did defendant’s evidence entitle him to have the issue of his guilt of involuntary manslaughter submitted to the jury? There are well-considered cases from other jurisdictions which hold that in a prosecution for homicide, where the court correctly instructed as to murder in the first and second degrees and the jury found the defendant guilty of murder in the first degree, any error in refusing to instruct as to manslaughter was harmless. The exposition is this: A verdict of murder in the second degree would have supported the claim that the jury might have found the defendant guilty of a still lower degree of homicide had they been given the opportunity under proper instructions. “All such speculations are dissipated, however, by the fact that the defendant was found guilty of murder in the first degree. When the jury excluded from the case the alternative of murder in the second degree, all lower degrees were necessarily eliminated by the same rule.”
People v. Brown,
203 N.Y. 44, 51, 96 N.E. 367, 369. A verdict of murder in the first degree shows clearly that the jurors were not coerced, for they had the right to convict in the second degree. That they did not indicates their certainty of his guilt of the greater offense. The failure to instruct them that they could convict of manslaughter therefore could not have harmed the defendant.
People v. Granger,
187 N.Y. 67, 79 N.E. 833;
State v. Lantzer, 55
Wyo. 230, 99 P. 2d 73;
State v. Metcalf,
203 Kan. 63, 452 P. 2d 842;
State v. Loveless,
62 Nev. 17, 150 P. 2d 1015;
Tarrence v. Commonwealth,
265 S.W. 2d 40 (Ky. 1953);
Brown v. State,
219 Ark. 647, 243 S.W. 2d 938;
State v. Clokey,
83 Idaho 322, 364 P. 2d 159;
State v. Drosos,
253 Iowa 1152, 114 N.W. 2d 526; 24B C. J. S.
Criminal Law
§ 1923(3) (1962). See the dissenting opinion in
People v. Modesto, 31 Cal.
Rptr. 225, 382 P. 2d 33, 41-55.
The foregoing is the rationale of this Court in
State v. Lipscomb, supra,
and
State v. Munn, supra,
and'the rationale by which we conclude that the error in the charge (Assignment No. 1) was harmless. However, in cases where there was evidence tending to sup
port a lesser degree of the crime charged in the bill of indictment, and the trial judge
failed
to submit the issue, the decision has been that the defendant is entitled to have all the different views presented to the jury. In these situations the holding is that the judge’s failure to submit the question of defendant’s guilt of the lesser included offense is not cured by a verdict convicting the defendant of the highest offense charged in the bill— even though the conviction could have been of an intermediate offense.
State v. Moore,
275 N.C. 198, 166 S.E. 2d 652;
State v. McNeill,
229 N.C. 377, 49 S.E. 2d 733;
State v. Lee,
206 N.C. 472, 174 S.E. 288;
State v. Williams,
185 N.C. 685, 116 S.E. 736;
State v. Merrick,
171 N.C. 788, 88 S.E. 501. The opinions in these cases did not specifically discuss the rationale contained in
Lipscomb
and
Munn
and the cases cited herein from other jurisdictions. Nor is it now necessary to consider whether there is any justification for making a distinction between the situation in
Lipscomb
and
Munn
and that in
State v. Moore, State v. McNeill, State v. Merrick,
and the other cases cited above, for we hold that the evidence did not justify a charge upon involuntary manslaughter.
By his own statement defendant pursued the fleeing Sawyer, who had displayed no weapon and had none insofar as the evidence discloses. Defendant attempted to shoot him in the back as, seeking sanctuary, he ran through the door of Carolyn Whitworth’s house. In hot pursuit, with pistol in hand, defendant invaded her home. As soon as he saw Sawyer coming from behind the door defendant had pushed open, defendant “jumped back off him and shot him again.”
Whatever may have transpired before Sawyer left Jake Brown’s porch, when defendant pursued him across the street into Carolyn Whitworth’s home after he had attempted to shoot him in the back, it is quite clear that defendant had become
and remained
the aggressor. Defendant’s own recitation of his actions belie his disavowal of an intent to kill. In any event, however, the mere absence of a specific intent to kill Sawyer would not require the submission of the issue of defendant’s guilt of involuntary manslaughter. Considering defendant’s testimony in its entirety, it is quite clear that he intentionally discharged his pistol when it was pointed in Sawyer’s direction. He says it was because he was afraid of Sawyer. The jury, however, thought otherwise.
Although defendant was not entitled to either instruction, the judge gave him the full benefit of his plea of self-defense and of the law relating to a killing in the heat of passion. Notwithstanding the error discussed earlier herein, the overall effect of the judge’s charge
was in defendant's favor. All the evidence tends to establish defendant’s guilt of murder in the first degree. He has had a trial free of prejudicial error, and we see no reason to disturb the verdict.
No error.