State v. Fearing

Judge HEDRICK

dissenting:

The identical infirmity in the instructions upon which the majority awards the defendant a new trial was the basis of an assignment of error in State v. Fearing, 48 N.C. App. 329, 269 S.E. 2d 245, cert. denied, 301 N.C. 99, 273 S.E. 2d 303 (1980) wherein another panel of this Court in an opinion authored by Chief Judge Morris declared the assignment of error to be without merit. I vote to find no prejudicial error.