STATE of North Carolina
v.
Bill DILLDINE.
No. 7418SC472.
Court of Appeals of North Carolina.
July 3, 1974.*366 Atty. Gen. Robert Morgan by Associate Atty. C. Diederich Heidgerd, Raleigh, for the State.
Asst. Public Defender Richard S. Towers, Greensboro, for defendant appellant.
CAMPBELL, Judge.
The defendant assigns numerous exceptions to the judge's charge to the jury sufficient we think to merit a new trial. In view of this, we will not go into the factual situation in greater detail. The evidence was ample to go to the jury.
At the outset, it should be noted that this was one offense and not two. It was improper to have two bills of indictment and two offenses growing out of this one episode. The mere fact that some of the shots entered from the front and some entered from the back does not make two offenses. It would be just as reasonable to have five offenses since there were five shots in all. Compare with State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974). Each bill of indictment in the instant case charged a felonious assault under G.S. § 14-32(a) and as of the date of this offense carried a maximum imprisonment for not more than ten years.
The first assignment of error pertains to the following portion of the charge:
"Now, members of the jury, we are trying two cases, really. Case No. 72-19256 is an assault with intent to kill, and Case No. 73-19742 is an assault with intent to kill inflicting serious injury not resulting in death. Both are felonious assaults."
The court then read the first bill of indictment to the jury and then charged:
"Now, the bill of indictment in the other case reads the same way except it is said `by shooting him in the back, against the form of the statute in such case made and provided, and against the peace and dignity of the State.'"
The defendant asserts that these two instructions were inconsistent and confusing to the jury.
Later in instructing the jury as to the elements of the crime and particularly with regard to the element of intent to kill, the court instructed:
". . . 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 of his intent to kill his victim or to inflict great bodily harm, and such intent may be inferred from the nature of the assault, the manner in which the act was committed, the conduct of the parties and other relevant circumstances." (Emphasis added)
The error assigned is to the use of the words "to inflict great bodily harm" as being sufficient to indicate an intent to kill and thus placing a lesser degree of proof upon the State than is necessary.
*367 Another assignment of error is to this portion of the charge:
"Now, members of the jury, again, on this charge of an assault with a deadly weapon inflicting serious injury, if you are satisfied from the evidence beyond a reasonable doubt that Bill Dilldine on this 22nd day of December, 1972, intentionally shot this man Seigler without justification or excuse, and that he used this .25-caliber pistol, and that he thereby inflicted serious bodily injury to Seigler, and that he was not justified by self-defense, then it would be your duty to return a verdict of guilty as charged."
One of the elements of the crime with which the defendant was charged was assault with intent to kill. This instruction left that element out and yet would permit the jury to return a verdict of guilty as charged. Compare with State v. Whitted, 14 N.C.App. 62, 187 S.E.2d 391 (1972).
Another exception to the charge was to this portion:
"The second case refers to the shots that Seigler received in his back. You will recognize that this is the more serious of the two charges."
Here, again, the trial judge treated the two cases as being of different seriousness, whereas, each charge was exactly the same as contained in the bill of indictment. There was no difference in the seriousness of the two cases.
When all of these assignments of error are considered together, we think the defendant has been sufficiently prejudiced to warrant a new trial.
New trial.
BROCK, C. J., and HEDRICK, J., concur.