State v. Parker

272 N.C. 142 | N.C. | 1967

PeR Curiam.

Both the State and defendant offered evidence. The State’s evidence, which the jury accepted, ■ was sufficient to establish defendant’s guilt as charged in the indictment; defendant’s evidence tended to show that defendant shot Eiggs in defense of himself, his wife, and his habitation. Defendant does not contend that he was entitled to a nonsuit. As warranting a new trial, however, he assigns as error the following portion of the trial judge’s charge to the jury:

. . [A]nd, so, intent to kill is the intent which exists in the mind of a person at the time he commits the assault, or the criminal act, intentionally and without justification or excuse to kill his victim, or to inflict great bodily harm. . . .”

In State v. Ferguson, 261 N.C. 558, 135 S.E. 2d 626, an instruction identical with the above was held to be prejudicial error, “for it would allow the jury to find an intent to kill if the defendant intended either to kill or to inflict great bodily harm. But if the jury found only an intent to inflict great bodily harm, this would be insufficient to sustain the felony charge since the intent to kill is an essential element of such charge.” Id. at 561, 135 S.E. 2d at 628.

For the error indicated, there must be a

New trial.