STATE of North Carolina
v.
Lawrence Jerome HARRIS alias Joe Harris.
No. 99.
Supreme Court of North Carolina.
January 29, 1976.*345 Peter A. Foley, Charlotte, for defendant-appellant.
Rufus L. Edmisten, Atty. Gen., Jesse C. Brake, Associate Atty., Raleigh, for the State of North Carolina.
*346 HUSKINS, Justice:
We overrule defendant's assignments of error based on his contentions that (1) the court failed "to give equal stress to the State and defendant" in summarizing the evidence, (2) the court erred in charging on flight as bearing on defendant's guilt or innocence, and (3) the court erred in failing to charge on the law of self-defense. The court's recapitulation of the evidence was in substantial compliance with G.S. 1-180. The court's instruction on flight was based on evidence reasonably tending to show that defendant fled the jurisdiction immediately following the crime. Defendant's version of the killing does not invoke legal principles applicable to a killing in self-defense. We therefore put aside these assignments without further discussion and go directly to the question raised in defendant's remaining assignment of error.
Defendant contends the court committed prejudicial error in its charge by placing upon him the burden of satisfying the jury that Weddle's death was the result of an accident. This constitutes the basis for defendant's final assignment of error and requires examination of the following challenged portions of the charge:
"If the State of North Carolina proves beyond a reasonable doubt that the defendant intentionally killed Weddle with a deadly weapon or intentionally inflicted the wound upon Weddle with a deadly weapon that proximately caused his death, the law raises two presumptions: First, that the killing was unlawful and, second, that it was done with malice. Nothing else appearing, the defendant would be guilty of second degree murder because a killing with a deadly weapon raises a presumption of malice, raises a presumption that it was done with malice rather.
Now, in order to excuse it altogether on the grounds of accident, members of the jury, the burden is upon the defendant to satisfy you, not by the greater weight or not beyond a reasonable doubt, but simply to satisfy you that this death of Weddle was an accident." (Emphasis added.)
After defining the word "accident" and summarizing for the jury the three elements necessary to render a homicide excusable by reason of accident (absence of intent to do harm, lawfulness of the act from which death results, and proper precautions to avoid mischief), the court charged the jury as follows:
"Now, members of the jury, bearing in mind that the burden of proof rests upon the State to establish the guilt of this defendant Harris beyond a reasonable doubt, I charge you that if you find from this evidence that the killing of the deceased was accidental, that is, that this Weddle's death was brought about by an unknown cause or that it was from an unusual or unexpected event from a known cause, and you also find that the killing of the deceased was unintentional, that at the time of the homicide the defendant was engaged in the performance of a lawful act without any intention to do harm and that at the time he was using proper precautions to avoid danger, if you find these to be the facts, remembering that the burden is upon the State, then I charge you that the killing of the deceased was a homicide by misadventure and if you so find, it would be your duty to render a verdict of not guilty as to this defendant."
Assertion by the accused that a killing with a deadly weapon was accidental is in no sense an affirmative defense shifting the burden to him to satisfy the jury that death of the victim was in fact an accident. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965). Defendant's contention here that Weddle's death resulted from accident "was a denial that he committed the crime charged, and such contention is not an affirmative defense which resulted in the imposition of any burden of proof upon him. The burden remained upon the State to prove each and every element of the crime *347 charged beyond a reasonable doubt." State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975); accord, State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971); State v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971); State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Fowler, 268 N.C. 430, 150 S.E.2d 731 (1966); State v. Williams, 235 N.C. 752, 71 S.E.2d 138 (1952). See generally Annot., Homicide: Burden of Proof on Defense that Killing was Accidental, 63 A.L.R.3d 936 (1975).
In light of these legal principles it is quite apparent that the italicized portion of the charge to the jury above quoted in this case was erroneous in that it placed the burden on defendant to satisfy the jury that the death of Weddle was an accident. It is equally apparent that the last quoted paragraph from the charge is a correct statement of the law. "It has been uniformly held that where the 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. This is particularly true when the incorrect portion of the charge is the application of the law to the facts. [Citations omitted.] A new trial must also result when ambiguity in the charge affords an opportunity for the jury to act upon a permissible but incorrect interpretation." State v. Parrish, 275 N.C. 69, 165 S.E.2d 230 (1969); accord, State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971). The jury cannot be expected to know which of two conflicting instructions is correct. State v. Holloway, 262 N.C. 753, 138 S.E.2d 629 (1964). It must be assumed on appeal that the jury was influenced by that portion of the charge which is incorrect. State v. Starnes, 220 N.C. 384, 17 S.E.2d 346 (1941). Moreover, an erroneous instruction on the burden of proof is not ordinarily corrected by subsequent correct instructions upon the point. State v. Faulkner, 241 N.C. 609, 86 S.E.2d 81 (1955); see State v. Grayson, 239 N.C. 453, 80 S.E.2d 387 (1954); State v. Floyd, 220 N.C. 530, 17 S.E.2d 658 (1941); State v. Patterson, 212 N.C. 659, 194 S.E. 283 (1937).
For the reasons stated, the judgment is vacated and the case remanded to the Superior Court of Mecklenburg County for a
New trial.