The trial judge charged the jury as follows: “Gentlemen, if you shall find from the evidence, beyond a reasonable doubt, that Odell MeHaffey, with malice aforethought, intentionally fired a pistol at the deceased, J. T. Coffey, and killed him, and you fail to find beyond a reasonable doubt that the killing was done with premeditation and deliberation, then it would be your duty to return a verdict of guilty of murder in the second degree against Odell MeHaffey.” “If you shall find from the evidence beyond a reasonable doubt that Lloyd Harkins, with malice aforethought, intentionally fired a pistol at the deceased, J. T. Coffey, and killed him; and if you shall fail to find beyond a reasonable doubt that at the time of the killing it was done with premeditation and deliberation, then it would be your duty to return a verdict of guilty of murder in the second degree against the defendant, Lloyd Harkins.”
The learned trial judge correctly stated the law as to the right of self-defense in other portions of the charge, but the peremptory instructions above given, to all practical purposes, deprived the defendants of the force of such defense, and must be held as error.
The court further charged the jury: “If you shall find from the evidence beyond a reasonable doubt that the defendant, Lloyd Harkins, without malice and without premeditation and deliberation, fired the pistol at J. T. Coffey and killed him, then it would be your duty to return a verdict of guilty of manslaughter against him unless you shall find from the evidence the existence of such facts and circumstances as would excuse it on the ground of self-defense, and if you should find that the other two defendants were present at the time the fatal shot was fired and the defendant Harkins was not excusable at the time he fired the shot, that he was guilty of manslaughter, and the other two defendants or either of them were present for the purpose of aiding and abetting and assisting they, too, would be guilty of manslaughter, or if *31you should find that one of them was present with that intention, then that one would be guilty.”
“If you should find from the evidence, beyond a reasonable doubt, that the defendant Odell MeHaffey, without malice and without premeditation and deliberation, fired the fatal shot with a pistol and killed J. T. Coffey, then it would be your duty to return a verdict of guilty of manslaughter against Odell MeHaffey, unless he has shown by the evidence the existence of such circumstances as will excuse it on the ground of self-defense, and if you should find Odell MeHaffey guilty of manslaughter, and if you find from the evidence, beyond a reasonable doubt, that the other two defendants, or either of them, were present for the purpose of aiding, assisting and abetting and encouraging MeHaffey in the perpetration of the crime, then it would be your duty to return a verdict of guilty of manslaughter against the two, or against the one, as you shall find from the evidence.”
Abstractly, these instructions are correct, but upon close scrutiny and examination of the record, we fail to find any evidence of aiding and abetting as defined by law, and the exceptions of the defendants to the instructions must be upheld. S. v. Jarrell, 141 N. C., 722; S. v. Hart, 186 N. C., 582; S. v. Baldwin, 193 N. C., 567.
There are other exceptions in the record, but by reason of the fact that a new trial is awarded, we refrain from comment in order that both the State and the defendants may have a fair and impartial trial upon the merits of the case.
New trial.