Appeal by defendant from Collier, J., at the 2 October 1978 Criminal Session of Iredell Superior Court.
Copeland, Justice. Justice Brock did not participate in the consideration or decision of this case. Justice Huskins dissenting in part.
In his sixteenth assignment of error, the defendant claims the trial court erred in failing to submit the issue of second degree murder to the jury. We agree; therefore, the defendant must be granted a new trial.
Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. 14-17; State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969).
Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963).
Premeditation means thought beforehand for some length of time, however short. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975).
Deliberation means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose. . . . State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961).
The jury should be instructed on a lesser included offense when there is evidence from which the jury could find that such lesser included offense was committed. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971). Error in failing to submit the question of defendant's guilt of a lesser degree of the same crime is not cured by a verdict of guilty of the offense charged because it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly submitted to the jury. State v. Duboise, supra.
Here, there is some evidence from which the jury could infer that the defendant killed Vanderburg without premeditation and deliberation. The evidence discloses that the defendant had a conversation with Vanderburg both inside and outside the bar. Caldwell did not overhear those conversations, but the defendant did tell Caldwell while apologizing to him that his friend Vanderburg "had gone for bad." Immediately after the exchange of words between the defendant and Vanderburg, defendant ran to his pickup truck, pulled out his rifle and clip, "slung" the barmaid out of the way when she tried to intercede, and then the defendant shot Vanderburg once.
From this evidence a jury could infer that the defendant did not think before acting and did not act cooly and calmly with premeditation and deliberation. Therefore, it was error for the trial court not to instruct on second degree murder. This is not to say that it was error for the trial court to instruct on first degree murder. The circumstantial evidence of premeditation and
deliberation cuts both ways on the facts of this case, and the court should have instructed on both ...