State v. Evans , 10 N.C. App. 265 ( 1970 )

PARKER, Judge.

In the course of the charge to the jury, the trial court instructed the jury concerning defendant’s contention that he was so intoxicated as to be incapable of forming a criminal intent. The charge then contains the following instruction, to which defendant excepts:

“The Court further charges you, however, that in a case such as this the intent is inferred from the commission of the act; therefore, if the defendant in the instant case committed the crime charged in the bill of indictment and had sufficient knowledge to comprehend the nature and consequences of his act, he would not be entitled to acquittal upon this plea of drunkenness.”

Defendant’s exception is well taken. The only act involved was defendant’s act in driving the automobile, as to which no question was raised. His intent in performing that act was all important and was the only real question for the jury to determine. He may well have had “sufficient knowledge to comprehend the nature and consequences of his act” in driving the automobile and yet never at any time have formed the felonious intent to deprive the owner of her property permanently. Such an intent was an essential element of the crime with which he was charged. While in other portions of the charge the court correctly instructed the jury as to the essential elements of the crime, the jury may have understood from the portion of the charge excepted to that felonious intent must be inferred unless they should find defendant was so drunk that he did not have “sufficient knowledge to comprehend the nature and consequences of his act” in driving. Because the jury may have been misled in determining the crucial question in this case, defendant is entitled to a new trial.

The case is remanded for a new trial. We observe, however, that the evidence in this case more strongly suggests that defendant may have been guilty of the misdemeanor described in G.S. 20-105, rather than of felonious larceny.

New trial.

Chief Judge Mallard and Judge Graham concur.