#### STATE OF NORTH CAROLINA v. CLAYTON LEAK

No. 40PA82

(Filed 2 June 1982)

BEFORE Judge DeRamus presiding at the 3 March 1981 Session of RICHMOND Superior Court defendant was tried on an indictment charging assault with a deadly weapon with intent to kill inflicting serious injury. He was convicted of an assault with a deadly weapon with intent to kill and sentenced to ten years’ imprisonment. The Court of Appeals, in an unpublished decision, ordered a new trial. The opinion was by Judge Whichard with Judges Clark and Becton concurring. 55 N.C. App. 481, 286 S.E. 2d 908 (1982). We allowed the state’s petition for further review on 3 March 1982.

Rufus L. Edmisten, Attorney General, by Steven F. Bryant, Assistant Attorney General, for the state appellant.

Adam Stein, Appellate Defender, by Nora B. Henry, Assistant Appellate Defender, for defendant appellee.

PER CURIAM.

The Court of Appeals awarded a new trial for failure of the trial judge to instruct on the legal effect of an accidental shooting. In its petition for further review the state urged primarily that the trial judge’s instructions sufficiently charged on accident. Alternatively, the state urged that there was no evidence to support a charge on accident.

In its brief and on oral argument in this Court, the state conceded that the trial court’s instructions did not adequately charge on the legal effect of accident and relied solely on its contention that there was no evidence to support such a charge.

After a careful review of the record and briefs and the decision of the Court of Appeals, we conclude that we improvidently allowed the state’s petition for further review.

Discretionary Review Improvidently Allowed.