STATE
v.
Fred ADAMS.
No. 1.
Supreme Court of North Carolina.
March 2, 1955.*920 Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
O. L. Anderson, Murphy, for defendant, appellant.
BOBBITT, Justice.
Both in first degree murder and in second degree murder, there must be an unlawful killing with malice. The State must satisfy the jury from the evidence beyond a reasonable doubt of the presence of these indispensable elements. To convict of first degree murder the State must also satisfy the jury from the evidence beyond a reasonable doubt that the killing was "willful, deliberate and premeditated." G.S. § 14-17.
When the State satisfies the jury from the evidence beyond a reasonable doubt that the defendant intentionally shot the deceased and thereby proximately caused his death, there arise the presumptions that the killing was (1) unlawful and (2) with malice. State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.
The quoted instruction includes the statement that the jury may "find from the admission of the prisoner that he shot and killed Luther Carringer with malice." (Italics added.)
We have searched the record in vain to find any judicial admission either by defendant or by counsel in his behalf. Nor does the record disclose testimony of defendant to the effect that he shot and killed Carringer with malice. Indeed, defendant's testimony tended to show that he had no knowledge of having fired the rifle; and further, that he had no malice towards Carringer and had no intention to shoot him. Thus, we find no basis in the record for the instruction to the jury stating, in effect, that the defendant had made an admission that he had shot and killed Carringer with malice.
The reference to such admission of the defendant, while an inadvertence, must be regarded as prejudicial to defendant on a critical feature of the case. Compare State v. Redman, 217 N.C. 483, 8 S.E.2d 623; State v. Ellison, 226 N.C. 628, 39 S.E.2d 824; State v. Simmons, 236 N.C. 340, 72 S.E.2d 743; State v. Ham, 238 N.C. 94, 76 S.E.2d 346.
For the error stated, there must be a new trial. Hence, other assignments of error, which involve questions which may not arise upon such new trial, need not be discussed.
New trial.