On a writ of certiorari to review judgment of Friday, Judge. Judgment entered 3 April 1980 in Superior Court, Haywood County. Heard in the Court of Appeals 23 September 1981.
Becton, Judge. Judges Martin (Robert M.) and Martin (Harry C.) concur.
The trial court submitted assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weapon inflicting serious injury as possible guilty verdicts. In explaining to the jury the "intent to kill" element of the greater offense, the trial court stated the following:
Thirdly, it is also charged that the Defendant assaulted the prosecuting witness with the specific intent to kill him.
So, it's necessary for the Court to give you the legal definition of intent to kill, Ladies and Gentlemen.
Intent is an act or emotion of the mind; seldom, if ever, capable of direct or positive proof. But it is arrived at by such just and reasonable deductions from the acts and facts proven as the guarded judgment of a reasonably cautious and prudent man would ordinarily draw therefrom. It is usually shown by facts and circumstances known to the party charged with the intent, and may be evidenced by the acts or declarations of the party which betray it. Now, every man, in law, is presumed to intent (sic) any consequences which naturally flow from an unlawful act. So, the Court charges you that an intent to kill is the intent which exists in the mind of the person at the time he commits the assault, intentionally and without justification or excuse, to kill his victim. This element, as the others, must be proven by the State beyond a reasonable doubt.
Now, in deciding what the Defendant's intent was on the occasion in question, Ladies and Gentlemen, the Court instructs you that you may consider the way in which the defendant acted on the occasion in question; the weapon he used, if any; the injuries he inflicted; his statements and all other facts surrounding the alleged shooting on the day in question.
By his first assignment of error, the defendant challenges that portion of the instructions that we have emphasized above. He argues that the instruction in question is erroneous under our case law, citing State v. Parks, 290 N.C. 748, 228 S.E.2d 248 (1976), and under federal constitutional law, citing Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). We agree.
State v. Parks was also a prosecution for assault in which the defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury. While defining intent to kill, the court in Parks stated, "By intent to kill, it means that no special intent is required beyond the intent to commit an unlawful act which may be inferred from the nature of the assault and the attending circumstances." Our Supreme Court found error in this instruction. It reasoned as follows:
The quoted portion of the charge in the present case is clearly erroneous. The instruction that a person is presumed to intend the natural consequences of his act is proper only in those cases wherein a specific intent is not an element of the crime. State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964); State v. Elliott, 232 N.C. 377, 61 S.E.2d 93 (1950). However, where a specific intent to do an act is an element of a crime, the State has the burden of proving the specific intent beyond a reasonable doubt. State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972). Ordinarily, a specific intent to do an act is shown by the proof of facts and circumstances from which such an intent may be inferred. State v. Thacker, supra; State v. Cauley, 244 N.C. 701, 94 S.E.2d 915 (1956).
In the case at bar, a specific intent to kill was a necessary element in the proof of two of the assaults charged upon by the trial judge. Further, it was the distinguishing characteristic between two of the assaults and the lesser offense of assault with a deadly weapon. The quoted portion of the charge permitted the jury to find the requisite intent to kill solely from the proof of ...