The court in State v. Ballard, 127 N.C. App. 316, 489 S.E.2d 454 (1997), addressed this specific issue within the context of the operation of an automobile by a legally intoxicated driver. The defendant in Ballard was convicted of second-degree murder resulting from a collision in which defendant was operating a motor vehicle with a blood alcohol level of .18. In Ballard, the Court stated: "Malice arises when an act which is done so recklessly and wantonly as to manifest a mind utterly without regard to human life and social duty, and deliberately bent upon mischief." Thus, it is the reckless and wanton nature of the act committed which leads to the inference of malice. On the other hand, it is the use of a device, normally hazardous to the lives of more than one person, to create a risk of death to more than one person which supports the aggravating factor at issue. Therefore, we hold that the defendant's operation of the motor vehicle did not constitute one of the elements of second degree murder. Id. at 323, 489 S.E.2d at 458-59.