majority"> Stacy, C. J.

The instruction, here assigned as error, took from the jury any consideration of “the less degree” of the crime charged, to wit, manslaughter. In this, we think there was error. S. v. Robinson, 188 N. C., 784, 125 S. E., 617. Cf. S. v. Keaton, 206 N. C., 682, and S. v. Capps, 134 N. C., 622, 40 S. E., 730.

*411 Tbe rule is, that when it is permissible under the bill to convict the defendant of “a less degree of the same crime,” and there is evidence to support a milder verdict, the defendant is entitled to have the different views presented to the jury under proper instructions, and an error in this respect is not cured by a verdict finding the defendant guilty of a higher offense, for in such case, it cannot be known whether the jury would have convicted of a less degree of the same crime if the different views, arising on the evidence, had been correctly presented in the court’s charge. S. v. Lee, 206 N. C., 472, 174 S. E., 288.

It is also established practice that on trial for homicide, upon the admission or establishment of an intentional killing with a deadly weapon, the law casts upon the defendant the burden of satisfying the jury that the killing was without malice, if he would escape a conviction of murder in the second degree, and that it was justified if he would avoid a conviction of manslaughter. S. v. Burrage, 223 N. C., 129, 25 S. E. (2d), 393; S. v. Davis, 223 N. C., 381, 26 S. E. (2d), 869; S. v. DeGraffenreid, 223 N. C., 461, 27 S. E. (2d), 130; S. v. Beachum, 220 N. C., 531, 17 S. E. (2d), 674; S. v. Sheek, 219 N. C., 811, 15 S. E. (2d), 282; S. v. Bright, 215 N. C., 537, 2 S. E. (2d), 541.

Here, the defendant says the killing, if not justified, was at least without malice, and the jury should have been permitted to consider the evidence in this light. S. v. Sheek, supra. According to defendant’s testimony, the deceased was more than a mere trespasser at the time of the shooting. S. v. Brittain, 89 N. C., 481; S. v. Morgan, 25 N. C., 186. He was. trying to undo the latch to the cow stall, and refused to desist or to answer the defendant’s many cries. This caused the defendant to apprehend that his own life was in danger. S. v. Lipscomb, 134 N. C., 689, 47 S. E., 44; S. v. Craton, 28 N. C., 164.

The fact that the jury deliberated three hours and forty minutes before returning a verdict within the confines of the charge would seem to indicate some hesitancy on their part. We think they should have been allowed to consider the issue of manslaughter.

New trial.

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