State v. Hunter

MARTIN, Judge.

In our decision filed 4 February 1976, we recognized that the instructions given by the trial court, in placing the burden of proof on the defendant to rebut the presumption of malice and unlawfulness, violate the concept of due process announced for the first time in Mullaney and followed by the North Carolina Supreme Court in State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975). However, we declined to give Mullaney retroactive effect on the authority of Hankerson and found no error in defendant’s trial.

The Supreme Court of the United States having allowed cer-tiorari in Hankerson and, in an opinion filed 17 June 1977 and reported in 432 U.S. ---, 53 L.Ed. 2d 306, 97 S.Ct. 2339 (1977), held that the Supreme Court of North Carolina erred in declining to hold the Mullaney rule retroactive. Because a decision of the Supreme Court of the United States interpreting the Constitution of the United States is binding upon this Court, we hold that defendant in the case under consideration is entitled to a new trial and it is so ordered.

New trial.

Judges Morris and Parker concur.