#### STATE OF NORTH CAROLINA v. ROGER LAWRENCE WETMORE

No. 94

ORDER FOR NEW TRIAL UPON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

HAVING reconsidered this case on remand from the Supreme Court of the United States in the light of Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508 (1975), and Hankerson v. North Carolina, --- U.S. ---,53 L.Ed. 2d 306 (1977), the defendant having properly raised on appeal to this Court the question of the constitutionality of the trial judge’s instructions placing the burden on the defendant to show that the killing was done in the heat of a sudden passion, see State v. Wetmore, 287 N.C. 344 (1975), and being of the opinion that in light of Mullaney and Hankerson, these assignments of error *263should have been sustained and defendant awarded a new trial, now, therefore, it is

ORDERED by the Court in Conference that defendant be and he is hereby awarded a new trial.

This the 12th day of September, 1977.

James G. Exum, Jr. Associate Justice

For the Court