8 N.C. App. 551 | N.C. Ct. App. | 1970
Defendant contends that the court erred in failing to allow defendant’s motion for judgment of nonsuit. This contention is without merit. There was ample evidence of defendant’s guilt to require submission of the case to the jury.
Defendant contends, inter alia, that the court erred in failing to charge the jury on the law relating to involuntary manslaughter. This contention is well taken. “Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately resulting from the commission of an unlawful act not amounting to a felony, or resulting from some act done in an unlawful or culpably negligent manner, when fatal consequences were not improbable under all the facts existent at the time * * 4 Strong, N.C. Index 2d, Homicide, § 6. Although the court in the charge gave a definition substantially similar to the one above, it failed in the final mandate to apply the law on involuntary manslaughter to the evidence at the trial as required by G.S. 1-180. This constitutes reversible error. The judge in the charge to the jury limited the verdict of the jury to murder in the second degree, manslaughter, or not guilty. Under the evidence in this case, the judge should have submitted to the jury the question of the guilt or in
The error in failing to submit the question of defendant’s guilt or innocence of involuntary manslaughter is not cured by a verdict convicting defendant of a higher offense. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969). As stated in Moore:
“The reason for the rule was stated by Stacy, C.J., in State v. DeGraffenreid, 223 N.C. 461, 463-64, 27 S.E. 2d 130, 132: ‘(T)he defendant is entitled to have the different views presented to the jury, under a proper charge, and an error in respect of the lesser offense is not cured by a verdict convicting the defendant of a higher offense charged in the bill of indictment, for in such case it cannot be known whether the jury would have convicted of a lesser degree of the same crime if the different views, arising on the evidence, had been correctly presented by the trial court.’ ”
In the case at bar, the jury, if they believed defendant’s evidence, could have found her guilty of involuntary manslaughter. Even though the punishment imposed was within the limits allowed upon a conviction of involuntary manslaughter [G.S. 14-2; State v. Adams, 266 N.C. 406, 146 S.E. 2d 505 (1966)], the defendant had the right to have the jury consider involuntary manslaughter in determining her guilt or innocence. State v. Lilley, 3 N.C. App. 276, 164 S.E. 2d 498 (1968).
Since there must be a new trial, we do not consider defendant’s other assignments of error because they are unlikely to occur at the new trial.
New trial.