
174 S.E.2d 132 (1970)
8 N.C. App. 214
STATE of North Carolina
v.
William C. DRAKE.
No. 708SC287.
Court of Appeals of North Carolina.
May 27, 1970.
Certiorari Denied July 14, 1970.
*134 Robert Morgan, Atty. Gen., by Harrison Lewis, Deputy Atty. Gen., Robert G. Webb, Trial Attorney, and Howard P. Satisky, Staff Attorney, Raleigh, for the State.
Scott, Folger & Webster, A. D. Folger, Jr., Madison, and Brock & Gerrans, by C. E. Gerrans, Kinston, for defendant appellant.
GRAHAM, Judge.
In our opinion the evidence, though circumstantial in nature, was sufficient to send the case to the jury on the issue of defendant's guilt of murder in the first degree, and to support a verdict of guilty of murder in the second degree. The evidence shows that deceased suffered a brutal beating and was shot three times. A legitimate inference arises that the shots came from defendant's pistol and that at least part of the beating was administered with a hoe handle that was ordinarily kept in defendant's workshop on the outside of the trailer. No suggestion is offered anywhere in the record that anyone, other than defendant, had access to the hoe handle or pistol, or was present when the deceased met her tragic death. Defendant's motion of nonsuit was properly denied and his assignment of error relating thereto is overruled.
Defendant assigns as error the following portions of the court's instructions to the jury:
"Now the Court instructs you in regard to malice. Malice is not only hatred, ill will or spite, as those terms are ordinarily understood. To be sure, that is malice, but it also means that condition of mind which prompts a person to intentionally *135 take the life of another without just cause, excuse or justification. It may be shown by evidence of hatred, ill will, or dislike, and it is implied in law from the killing with a deadly weapon. And the Court instructs you that a pistol or a gun is a deadly weapon. That is, Gentlemen of the Jury, once a killing is proven to have been done with a deadly weapon the law presumes malice and therefore murder in the second degree at least. Now premeditation and deliberation are issues of fact which the state must satisfy you from the evidence and beyond a reasonable doubt before you would be able to find murder in the first degree; that is, along with malice." (Emphasis added).
The above instructions contain prejudicial error requiring a new trial.
The intentional use of a deadly weapon, as a weapon, when death proximately results from such use, gives rise to two presumptions: (1) that the killing was unlawful, and (2) that it was done with malice. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328; State v. Propst, 274 N.C. 62, 161 S.E.2d 560; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322. The presumptions do not arise from the mere use of a deadly weaponthe use must be intentional. State v. Debnam, 222 N.C. 266, 22 S.E.2d 562. And it is error where, as here, the court instructs that once a killing is proven to have been done with a deadly weapon the law presumes malice. State v. Mercer, supra. Nowhere in the instructions quoted above or anywhere else in the charge did His Honor explain to the jury that in order for a presumption of malice to arise, it had to be established or admitted that the defendant intentionally shot and killed deceased with the .38 caliber pistol.
The State contends that the court's omission was not prejudicial because the evidence so clearly established that if defendant shot deceased, he did so intentionally. We do not agree. To so hold would be to relieve the State of the burden of proving essential elements of the offense of murder in the second degree; namely, that the killing was unlawful and with malice. For these elements to be presumed present the burden is upon the State to satisfy the jury from the evidence beyond a reasonable doubt that the defendant intentionally used a deadly weapon, as a weapon, and inflicted wounds proximately resulting in death. See State v. Mercer, supra, and cases therein cited.
New trial.
MALLARD, C. J., and MORRIS, J., concur.
