91 N.C. App. 574 | N.C. Ct. App. | 1988
As his first assignment of error defendant contends that the trial court erroneously instructed the jury that it could convict defendant of second degree murder if it found that he acted in concert with Mitchell “with a common purpose to commit robbery.” We agree.
Now for a person to be guilty of a crime, it is not necessary that he himself do all the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit robbery, each of them is held responsible for the acts of the others done in the commission of the robbery.
Defendant correctly argues that a correct acting in concert instruction for second degree murder would read:
For a person to be guilty of a crime it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit second degree murder, each of them is held responsible for the acts of the others done in the commission of the second degree murder.
Pattern Jury Instructions, N.C.P.I.-Crim. 202.10 (emphasis added).
A conviction for second degree murder requires a finding that the defendant acted intentionally and with malice to kill the victim. State v. Wilkerson, 295 N.C. 559, 580, 247 S.E. 2d 905, 917 (1978). In Wilkerson the Court stated that second degree murder “does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death.” Id. We agree with defendant that the erroneous instruction given by the trial court could have allowed the defendant to be convicted of second degree murder based on the defendant’s mens rea for robbery. See State v. Reese, 319 N.C. 110, 141-143, 353 S.E. 2d 352, 370-372 (1987). Reese unequivocally states that even where a defendant is charged on a theory of aiding and abetting or acting in concert “for crimes requiring a specific mens rea, that mens rea must be shown as to each defendant.” Id. at 141 n.8, 353 S.E. 2d at 370.
Further, defendant correctly points out that North Carolina does not recognize an offense of second degree felony murder. State v. Davis, 305 N.C. 400, 422, 290 S.E. 2d 574, 588 (1982). The instruction fails because it may have led the jury to convict the defendant of second degree murder if they believed he intentionally participated in the robbery. Had the jury followed the rationale set out in the incorrect instruction, it could have wrongly
The State points out that the erroneous instructions quoted above by defendant were immediately followed by this final mandate:
So, I charge that if you find from the evidence and beyond a reasonable doubt that on or about the alleged date, the defendant, acting either by himself or acting together with Sammy Mitchell, intentionally and with malice killed the victim with a deadly weapon, it would be your duty to return a verdict of guilty of second degree murder.
We cannot be certain that this correct statement of the law necessarily remedied the confusion caused by the faulty instruction. “When a court charges correctly at one point and incorrectly at another, a new trial is necessary because the jury may have acted upon the incorrect part.” State v. Roth, 89 N.C. App. 511, 514, 366 S.E. 2d 486, 488 (1988), citing State v. Harris, 289 N.C. 275, 221 S.E. 2d 343 (1976). The charge was incorrect and defendant is entitled to a new trial.
In light of our holding it is unnecessary to review defendant’s additional assignments of error.
New trial.
