dissenting.
I disagree with the majority’s disposition of Appellant’s first proposition. In this proposition Appellant argues that fundamental error occurred when the jury was not properly instructed as to the elements of the offense charged. Appellant was charged with first degree child abuse murder under 21 O.S.1991, § 701.7(C). The trial court instructed the jury in Jury Instruction No. 8 that in order to find Appellant guilty of this crime, they must find each of the following elements beyond a reasonable doubt:
The elements are: FIRST, the death of a human; SECOND, the death occurred as a result of an act or event which happened in the commission of a Child Abuse; 'THIRD, caused by the defendant while in the commission of a Child Abuse; FOURTH, the elements of Child Abuse the Defendant is alleged to have been in the commission of which are as follows: (A) Wilfully or maliciously; (B) injuring, torturing, maiming, or using unreasonable force; (C) upon a child under the age of eighteen (18).
(O.R.109) The jury was also instructed in Jury Instruction No. 10 that the term “willful” means: “Purposeful. ‘Wilful’ [sic] does not require any intent to violate the law, or to injure another, or to acquire any advantage.” (O.R.lll). Appellant argues that these instructions were misleading and incorrectly allowed the jury to convict him of First Degree Murder by Child Abuse without finding that he had an intent to harm the child.
In support of his argument Appellant cites in his Brief-in-Chief to Hockersmith v. State, 926 P.2d 793 (Okl.Cr.1996) and, in his Reply Brief to Bannister v. State, 930 P.2d 1176 (Okl.Cr.1996). The defendants in both of these cases were convicted of First Degree Child Abuse Murder. Although the instructions given in Hockersmith and Bannister regarding the elements of the crime differed slightly from those given in the present case, the instructions given in both cases defining the term “willful” were identical to that given in the present case. In Hockersmith, this Court agreed with the defendant’s argument that this definition of “willful” is “confusing, contradictory and potentially misleading.” Hockersmith, 926 P.2d at 795. This is because in order to be convicted of First Degree Murder by Child Abuse one must be found to have committed child abuse. In 21 O.S.1991, § 843 the legislature provided that in order to be punished for having committed child abuse it must be found that the injury' inflicted upon the child was willful. Id. This statute has a specific intent requirement which is at odds with any definition of “willful” requiring no finding of intent to injure.
In Bannister, this Court reaffirmed the Hockersmith ruling, holding that:
*1074Although the jury instructions now at issue were taken either from statutes or the Uniform Criminal Instructions, together they allowed the jury to convict Bannister of first degree child abuse murder even if it found that he did not intend to injure the victim. Considering the context and terms employed in the child abuse murder statute, one cannot be guilty of this crime unless he or she intends to injure, torture, maim or use unreasonable force on a child. These instructions effectively and unconstitutionally relieved the State of its burden to prove all the elements of the crime charged beyond a reasonable doubt.
Bannister, 930 P.2d at 1178.1
In Hockersmith this Court, reviewing for plain error, found that the instructions given were incorrect and did amount to plain error requiring reversal. Hockersmith, 926 P.2d at 795. See also Simpson v. State, 876 P.2d 690 (Okl.Cr.1994). The error which occurred in the case at bar is the same as that found to have been plain error requiring reversal in Hockersmith and Bannister. I find that no different result is required in the present case. Accordingly, I would reverse Appellant’s Judgment and Sentence. I am authorized to state J. Lane joins in my dissent.
. Although the majority notes that Bannister was reversed based upon the accumulation of errors, rather than solely upon the error at issue here, a review of Bannister reveals that very little attention was actually given to the other errors noted in that case. Rather, upon reading Bannister it appears the other errors were addressed as an aside simply to assure that they not be repeated at the second trial. Bannister, 930 P.2d at 1178.