We are of opinion that exception to a portion of tbe charge relating to tbe first issue is well taken.
Where, as in this case, tbe defendant insurer seeks to avoid liability under a policy of life insurance on tbe ground that the policy contains provision that it shall be null and void if death of insured resulted from bodily injuries intentionally inflicted by another, tbe burden rests upon tbe defendant to prove facts bringing the case within that provision. Tbe court properly charged tbe jury to this effect. But, after reviewing contention of tbe defendant that tbe assailant, intending to commit a criminal assault upon tbe young lady, bad tbe motive to kill Warren, tbe insured, to prevent interference with bis nefarious purpose, tbe court charged tbe jury as follows: “And if tbe evidence does so satisfy you gentlemen, by its greater weight, upon a fair and honest consideration of it, that this man was there for that evil purpose, intentionally killed young Warren, shot him and killed him, then you should answer tbe first issue ‘Yes.’ Unless you are so satisfied you should answer it No.’ ” '
Tbe charge is subject to challenge in that it is susceptible of creating tbe impression that before tbe jury could answer tbe first issue in tbe affirmative tbe defendant must have satisfied tbe jury, by tbe greater weight of evidence, of two facts: (1) That tbe assailant, was there for tbe evil purpose of criminally assaulting tbe young lady, and (2) that tbe assailant intentionally killed Warren — that an intent to kill must be shown. Tbe inquiry is as to tbe intent to inflict bodily injury which resulted in death.
As tbe ease goes back for a new trial for error in the charge, other exceptions upon which tbe defendant relies for new trial need not be considered. Shoemake v. Refining Co., 208 N. C., 124, 179 S. E., 334; Callahan v. Roberts, ante, 223.
New trial.