State v. Cooper

173 S.E.2d 604, 8 N.C. App. 79, 1970 N.C. App. LEXIS 1491

Opinion

Vaughn, J.

Thé sole assignment of error brought forward by the defendants is to the following portions of the charge wherein the court defined intent to kill.

“. . . So I charge you an intent to kill is the intent which exists in the mind of a person at the time he commits the assault or criminal act intentionally and without justification or excuse to kill his victim or to inflict great bodily harm.” (Emphasis ours)

This instruction contains the identical prejudicial error found in State v. Parker, 272 N.C. 142, 157 S.E. 2d 666; State v. Ferguson, 261 N.C. 558, 135 S.E. 2d 626; and State v. Muskelly, 6 N.C. App. 174, 169 S.E. 2d 530. It would allow the- jury to find an intent to kill if the defendants intended either to kill or to inflict great bodily harm. 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. State v. Ferguson, supra.

For errors in the charge each defendant is entitled to a

New trial.

MallaRD, C.J., and MoRRis, J., concur.