73 N.C. App. 465 | N.C. Ct. App. | 1985
The question presented by this appeal is whether the trial court committed reversible error in submitting involuntary manslaughter as a possible verdict, because there was no evidence presented to support its submission. It was error and defendant’s conviction must be reversed and defendant discharged.
Involuntary manslaughter has been defined by our Supreme Court as “the unintentional killing of a human being without either express or implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence.” State v.
The record before us is absolutely devoid of any evidence that defendant shot Harold Jones “by some unlawful act not amounting to a felony or naturally dangerous to human life.” Evidence presented by both the State and defendant tends to show that defendant intentionally shot Jones with a deadly weapon, a .22 calibre rifle, and that the wounds intentionally inflicted caused Jones’ death. This was a felonious assault, G.S. 14-32, and was naturally dangerous to human life as is evidenced by Jones’ death. Similarly, there is no evidence of “an act or omission constituting culpable negligence” since the shooting of Jones was an intentional act allegedly done in self-defense. It was error, therefore, to submit the issue of whether defendant was guilty of involuntary manslaughter since there was no evidence in the record to support its submission. State v. Ray, 299 N.C. 151, 261 S.E. 2d 789 (1980); State v. Mercado, 72 N.C. App. 521, 324 S.E. 2d 285, petition for rev. allowed, 313 N.C. 607, 330 S.E. 2d 614 (1985); State v. Crisp, 64 N.C. App. 493, 307 S.E. 2d 776 (1983); State v. Martin, 52 N.C. App. 373, 278 S.E. 2d 305, rev. denied 303 N.C. 549, 281 S.E. 2d 399 (1981); State v. Cason, 51 N.C. App. 144, 275 S.E. 2d 221 (1981); State v. Brooks, 46 N.C. App. 833, 266 S.E. 2d 3 (1980).
The State argues that the submission of a lesser included offense not supported by the evidence is error not prejudicial to the defendant. State v. Vestal, 283 N.C. 249, 195 S.E. 2d 297, cert. denied, 414 U.S. 874 (1973); State v. Quick, 150 N.C. 820, 64 S.E. 168 (1909). The reasoning behind the State’s argument is that had the jury not been given the unsupported lesser offense as an alternative, it would have returned a verdict of guilty of a higher offense. State v. Ray, supra. The State’s argument must fail for the reasons that follow.
Involuntary manslaughter is not a, lesser included offense of murder or voluntary manslaughter. State v. Cason, supra; State v. Mercado, supra. As this court has stated:
It is difficult to submit an offense which is not a lesser included offense when there is no evidence to support it and then determine that if the jury had not convicted of the offense submitted, they would have convicted of another offense*469 which does not have all the elements of the offense of which the defendant was convicted.
51 N.C. App. at 146, 275 S.E. 2d at 222.
Finally, we reiterate the admonitions of Judge Webb in State v. Cason, supra, and Judge (now Chief Judge) Hedrick in State v. Crisp, supra:
Our trial judges in homicide cases arising out of the alleged intentional use of a deadly weapon would be well-advised not to submit involuntary manslaughter as a possible verdict where there is no evidence to support it. In addition to committing . . . prejudicial error . . . the trial judge who submits involuntary manslaughter under these circumstances makes his duty of declaring and explaining the law arising on the evidence impossible to fulfill; in such a case, the court’s instructions can only result in “confusion worse confounded.”
64 N.C. App. at 498, 307 S.E. 2d at 780.
We note that N.C.P.I. — Criminal, 206.30 as it relates to second degree murder and lesser homicide offenses contains a cautionary note at footnote 1 which should be a warning adequate to prevent trial courts from submitting instructions on involuntary manslaughter when the evidence does not support the instruction.
Here, defendant has been acquitted of all degrees of homicide other than involuntary manslaughter. The charge of involuntary manslaughter was improperly submitted to the jury because there was no evidence to support it. This error was prejudicial. The judgment of the superior court in 80CRS715 is reversed, and defendant is hereby ordered discharged.
Reversed.
