¶1 Exception 1. — The question was properly ruled out. It would not have served to corroborate wituess as to what she saw, which would have been competent, but only to show her belief or surmise at the time of the nature of the occurrence. It was simply irrelevant, and could throw no light upon the facts attending the homicide. There was no attempt to “ cut off the head” of anyone. That the witness thought and said otherwise that night, when she saw nothing that took place, is immaterial.
¶2 *732 Exception 2. — The question was improperly excluded. It was competent to show the declaration ot' the prisoner made at the time as a part of the res gestee, and aho to confirm his testimony of Ilie transaction as given on the trial. While error in excluding competent testimony is cured by after-wards admitting it from the same witness, it is nut cured by admitting another to testify to the same purport. State v. Murray, 63 N. C., 31.
¶3 Exception S. — The third exception is well taken. John .Jones, on behalf of the State, had testified as an eye-witness to the homicide, and had stated that he was not druuk when it occurred. Had this been pertinent only to impeach his character, his answer would have been conclusive. State v. Roberts, 81 N. C, 605. But it went rather to his capacity to know and remember with accuracy what took place. It was error, therefore, to exclude proof offered to show that he was “very drunk on that occasion.” It would have served to contradict him and to impair the credit to be given to his evidence, and would have been somewhat corroborative of the prisoner’s theory of self defence. When a witness had testified as an eye-witness to a transaction, it-would be competent to show that during the occurrence he was asleep or insensible, and, of course, also that he was very drunk.
¶4 Exception 4» — The evidence of the homicide was not circumstantial, and though the plea of self-defence was set up, it did not appear that the prisoner knew the character of deceased for violence. Evidence to show such character was, therefore, properly excluded. State v. Turpin, 77 N. C, 473; State v. Hensley, 94 N. C., 1022.
¶5 Exception />. — The 9th prayer for instruction was erroneously refused. State v. Sigman, 106 N. C , 728, 731.
¶6 Exceptions 6 and 11. — The 10th prayer for instruction was properly denied. Much is left necessarily to the judgment of the officer in such cases, when acting in good faith and without malice. State v. McNinch, 90 N. C., 695; State v, Sig *733 man, 106 N. C., 728; State v. Pugh, 101 N. C., 737. But when force so signal is used that death is caused thereby, there is no presumption of law that the officer acted without malice and in good faith, i. e., without excess of force. The jury must judge of the reasonableness of the force used (State v. Bland, 97 N. C., 438), and the burden remains on the prisoner to show matter of excuse or mitigation. Good faith and the absence of malice are matters of defence.
¶7 Exception 7. — The 11th prayer for instruction was properly refused. Good faith and want óf malice apply as to extent of force used when the arrest is legal, but does not validate an illegal arrest. State v. Hunter, 106 N. C., 796. State v. Black, 109 N. C., 856, does not apply to cases where an officer is on trial for using excessive force, nor where the transaction is not fully completed and finished. If the arrest was invalid, while third parties had no right to assault the officer to take away the piisonef (State v. Armistead, 106 N. C., 639), the officer was also guilty of an affray in attempting to hold the prisoner by force against the efforts of himself and fi’iends.
¶8 Exception 8. — The 12th prayer for instruction was properly modified by inserting the words,' “if the arrest was lawful.”
¶9 Exception 9. — The 16th prayer for instruction -was, “ if the circumstances and facts of the homicide are left in doubt to the jury, and the jury are unable to say how the deceased came to his death and under what circumstances, the jury will render a verdict of not guilty.” This would be correct in passing upon the killing, if not conclusively shown to have been committed by the prisoner.. But if the killing is proved or admitted to have been done by the prisoner with a deadly weapon, as in this case, exactly the opposite of the prayer is the settled law in this State. State v. Smith, 77 N. C., 488; State v. Gooch, 94 N. C., 987. The use of a deadly weapon is proof of malice, for which the prisoner must show excuse or mitigation.
¶10 *734 Exception 10. — The eighteenth payer was, “If there is a reasonable hypothesis, supported by the evidence, which is consistent with the prisoner’s innocence, then it is the duty of the jury to acquit.” This would be correct as to finding the killing to have been done by the prisoner when that fact is left in doubt. But when, as in this case, the killing by the prisoner has been established, the instruction would be illegal as to matters of excuse or mitigation, and the prayer must be construed with reference to the evidence. State v. Tilly, 25 N. C., 424. The law is too well settled in this State to be shaken now that if the killing is proved or admitted, all matters of excuse or mitigation devolve upon the prisoner. State v. Johnson, 48 N. C., 266; State v. Ellick, 60 N. C., 45: State v. Haywood, 61 N. C., 376; State v. Willis, 63 N. C., 26; State v. Bowman, 80 N. C., 432; State v. Vann, 82 N. C., 631; State v. Boone, 82 N. C., 637; State v. Brittain, 89 N. C., 481; State v. Mazon, 90 N. C., 676; State v. Carland, 90 N. C., 668; State v. Gooch, 94 N. C., 987; State v. Thomas, 98 N. C., 599; State v. Byers, 100 N. C., 512, and there are others to same effect. The case of State v. Miller, 112 N. C., 878, relied on by the prisoner, makes no change whatever in this well established rule.
¶11 Exception 11. — This raises the same point as Exception 6.
¶12 Exception 1%. — Is without merit. The Court cannot single out a witness or witnesses and charge the jury, that if they believe those witnesses, to find so and so. State v. Rogers, 93 N. C., 523, and cases there cited. But there is no impropriety in saying to the jury, that if they believe a certain state of facts, as deposed to by certain witnesses, then the law applicable is so and so, when the Court, as in this case, has called to their attention the opposite state of facts as deposed to by other witnesses and instructed as to the law applicable thereto. This directs the jury’s atention not to the credibility of such witnesses, but as to a certain hypothesis or state of facts, and the reference to the witnesses is simply *735 incidental to refresh them as to the evidence tending to show that particular state of facts.
¶13 Exception 13. — There is no ground for this exception. The proposition of law was correctly stated (State v. Kirby, 24 N. C., 201), and contained no expression of opinion that the prisoner was or was not a known officer.
¶14 Exception 14- — Is not well grounded. The prisoner has no cause to complain of the instruction. If so requested, the Judge might have told the jury that what would be excessive force in an individual .in an ordinary encounter, might not be so in an officer resisting the escape or rescue of a prisoner. State v. McNinch and Slate v. Sigman, supra. But the omission was not error when the instruction was not asked. Nor is the officer clothed with authority to judge arbitrarily of the necessity for killing. It must be left to the jury to judge of the necessity in each case. State v. Bland, 97 N. C., 438. Nor do we think that this instraction is open to the charge of ambiguity, pointed out by the exception. ■ Error.