The defendant assigns as error the following instruction of the court to the jury: “When it is proven beyond a reasonable doubt that the defendant intentionally shot and killed the deceased with a deadly weapon, to wit, a pistol, and I charge you that a pistol in this case is a deadly weapon, then the law casts upon the defendant the burden of proving to your satisfaction, not beyond a reasonable doubt or by the greater weight of the evidence, circumstances which would mitigate murder in the second degree to manslaughter or excuse it altogether on the grounds of accident.”

The presumptions that a homicide was unlawful and done with malice do not arise against the slayer in a prosecution for homicide unless he admits or the State proves that he intentionally killed the deceased with a deadly weapon. S. v. Ellison, 226 N. C. 628, 39 S. E. (2) 824; S. v. Burrage, 223 N. C. 129, 25 S. E. (2) 393; S. v. Debnam, 222 N. C. 266, 22 S. E. (2) 562; S. v. Gregory, 203 N. C. 528, 166 S. E. 387. Since there was no testimony at the trial tending to show that the killing of the deceased by the defendant was intentional, the instruction which the defendant challenges was not pertinent, and tended to confuse the jury. The question of the guilt or innocence of the accused upon the charge of manslaughter ought to have been submitted to the jury with appropriate instructions. S. v. Limerick, 146 N. C. 649, 61 S. E. 568. Hence, the verdict and judgment in the court below are set aside, and the appellant is awarded a

New trial.