
71 S.E.2d 921 (1952)
236 N.C. 121
STATE
v.
McCOY.
No. 577.
Supreme Court of North Carolina.
August 22, 1952.
*922 Gilbert Medlin, Laurinburg, for defendant-appellant.
Atty. Gen., Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Robert B. Broughton, Member of Staff, Raleigh, for the State.
VALENTINE, Justice.
In this enlightened age the humanity of the law is such that no man shall suffer death as a penalty for crime, except upon conviction in a trial free from substantial error and in which the constitutional and statutory safeguards for the protection of his rights have been scrupulously observed. Therefore, in all capital cases reaching this Court, it is the settled policy to examine the record for the ascertainment of reversible error. State v. Watson, 208 N.C. 70, 179 S.E. 455; State v. Stovall, 214 N.C. 695, 200 S.E. 426; State v. Moore, 216 N.C. 543, 5 S.E.2d 719; State v. Williams, 216 N.C. 740, 6 S.E.2d 492; State v. Page, 217 N.C. 288, 7 S.E.2d 559; State v. Morrow, 220 N.C. 441, 17 S.E.2d 507; State v. Brooks, 224 N.C. 627, 31 S.E.2d 754; State v. West, 229 N.C. 416, 50 S.E.2d 3; State v. Garner, 230 N.C. 66, 51 S.E.2d 895. If, upon such an examination, error is found, it then becomes the duty of the Court upon its own motion to recognize and act upon the error so found. State v. Sermons, 212 N.C. 767, 194 S.E. 469. This rule obtains whether the prisoner be prince or pauper.
With this principle as a beacon or polar star, we proceed to a discussion of the inadvertences *923 which appear to have crept into the charge of the court.
After reviewing the testimony relating to the quarrel between the man and his wife into which the prisoner had intruded, his Honor told the jury that the State had offered evidence tending to show "that during the course of the argument as to whether or not the deceased's wife would leave with the defendant, the defendant made the statement that if the deceased `messed up with him' that he was going to kill him before he left." The court further told the jury that the State's evidence tended to show that the defendant "stabbed him from the rear, whereupon the deceased fell to the ground." And further that the State offered evidence tending to show "that while the defendant was stabbing the deceased and while he was striking the deceased with the axe that the deceased's wife was begging the defendant not to kill her husband."
A careful examination of the record fails to disclose any evidence in support of the above quoted excerpts from the charge. "The court should never give the jury instructions based upon a state of facts not presented by some reasonable view, of the evidence produced on the trial, nor upon a supposed state of facts." State v. Wilson, 104 N.C. 868, 10 S.E. 315, 316. Such instructions only tend to mislead and confuse the jury. While an inaccurate statement of facts contained in the evidence should be called to the attention of the court during or at the conclusion of the charge in order that the error might be corrected, a statement of a material fact not shown in the evidence constitutes reversible error. State v. Love, 187 N.C. 32, 121 S.E. 20; Smith v. Stanfield Hosiery Mill, 212 N.C. 661, 194 S.E. 83; State v. Wyont, 218 N.C. 505, 11 S.E. 2d 473; Curlee v. Scales, 223 N.C. 788, 28 S.E.2d 576; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Piedmont Supply Co. v. Rozzell, 235 N.C. 631, 70 S.E.2d 677.
Hence, instructions to the jury that the State had offered evidence of a threat by the defendant to kill deceased, that the prisoner stabbed deceased from the rear, and that while the defendant and deceased were fighting, the wife of deceased was begging for the life of her husband, were erroneous and highly prejudicial to the defendant. These instructions furnished a strong basis for a finding that a murder was committed in cold blood, after deliberation and over the importunities of deceased's wife and must be held for error.
The court below further instructed the jury in part as follows:
"So I charge you, Gentlemen, that if you find from the evidence and beyond a reasonable doubt, that the prisoner killed the deceased, at the time and place in question, but you also find at the time this fatal blow was struck, that the prisoner was drunk and intoxicated; that the intoxication of the prisoner at the time was so great as to render it impossible for him to form the wilful, deliberate and premeditated intent to take the life of the deceased, that is, that the prisoner's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill, then he would not be guilty of murder in the first degree, but in that event the law would reduce the grade of the homicide from murder in the first degree to murder in the second degree. The mere intoxication of the prisoner will not excuse or palliate his offense unless he was in such a state of intoxication as to be incapable of forming this deliberate and premeditated intent. If he was, the grade of offense is reduced to murder in the second degree, but as I have already stated, this doctrine does not exist in reference to murder in the second degree nor as to manslaughter."
This instruction also constitutes error.
The mere proof that a homicide was committed by defendant raises no presumption of murder in the first degree. Wherever the burden may rest on his plea *924 of intoxication, the State must first offer testimony tending to show that the homicide was unlawful and was committed with malice and with premeditation and deliberation before defendant is put to any election as to what evidence, if any, he will offer.
Proof by the State that the defendant, with a deadly weapon, intentionally inflicted the wound which caused the death of deceased gives rise to two presumptions against him: (1) that the homicide was unlawful, and (2) was committed with malice. This constitutes murder in the second degree. If the State seeks a verdict of murder in the first degree, it must then offer evidence of premeditation and deliberation. The law never reduces the grade of a homicide from murder in the first degree to murder in the second degree for the simple reason that no evidence, however impelling in force, creates any presumption of premeditation and deliberation, save and except proof that the deceased was killed by defendant in the perpetration or attempted perpetration of a felony. State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322.
The court, in effect, by the quoted instruction, charged the jury that if it found the defendant killed the deceased, then "mere intoxication" would not excuse or palliate the crime and defendant would be guilty of murder in the first degree, unless he has shown to the satisfaction of the jury that the intoxication "was so great as to render it impossible for him to form the wilful, deliberate and premeditated intent to take the life of deceased;" that only upon such finding would the law reduce the crime to murder in the second degree.
The proof required of the State in this instruction before the jury should consider defendant's evidence of intoxication is not sufficient to raise any presumption either of murder in the first degree or murder in the second degree. That this instruction was prejudicial to the defendant would seem to be apparent.
For the errors pointed out, we conclude that the defendant is entitled to a new trial, and it is so ordered.
New trial.
