¶1After explaining the principles of the law relative to the right of self-defense, the trial judge instructed the jury as follows:
“In order to have the benefit of this principle of law the defendant must show:
1. That he was free from any blame.
2. That the assault on him was with a felonious purpose or appeared to be such.
3. That he attacked the person assaulting him, if you find that he did so, only when it was apparently necessary to do so to protect himself from death or great bodily harm.”
¶2The defendant excepted to the foregoing instruction, and assigns it as error.
¶3*438The rule with respect to the burden of proof of self-defense in the case of a homicide, and the rule with respect to the burden of proof of self-defense in a non-homicide case are not the same.
¶4When the intentional killing of a human being with a deadly weapon is admitted, or is established by the evidence, the law presumes malice from the use of a deadly weapon, and the law then casts upon the defendant the burden of proving to the satisfaction of the jury the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or the legal justification that will excuse it altogether upon the ground of self-defense. State v. Warren, 242 N.C. 581, 89 S.E. 2d 109. State v. Calloway, 1 N.C. App. 150, 160 S.E. 2d 501.
¶5On the other hand, when a defendant is charged with an assault with a deadly weapon, with intent to kill, inflicting serious injury, not resulting in death, although the defendant may admit that he inflicted the injury with a deadly weapon, the law does not raise the presumption that it was done with malice and thereby shift the burden to the defendant to satisfy the jury that his conduct was justified. State v. Warren, supra.
¶6The charge of the trial judge erroneously placed upon the defendant, in a non-homicide case, the burden of proving his defense of self-defense; for this error the defendant is entitled to a new trial.
¶7In view of this disposition, we will not discuss the remaining assignments of error.
¶8New trial.