No. 7311SC281 | N.C. Ct. App. | Jun 27, 1973
In his first assignment of error, defendant contends that it was improper for the trial court to allow State’s witness, Anthony Hooker, age 9, to testify after his competency as a witness had been challenged. We do not agree.
Upon defendant’s objection the trial court conducted a voir dire examination in the absence of the jury and upon being asked why he placed his hand on the Bible before testifying, Anthony Hooker stated, “ [S] o to tell the truth.” The trial court then concluded that the witness had sufficient intelligence and knowledge to give evidence. In State v. Turner, 268 N.C. 225" court="N.C." date_filed="1966-10-12" href="https://app.midpage.ai/document/state-v-turner-1254060?utm_source=webapp" opinion_id="1254060">268 N.C. 225, 230, 150 S.E. 2d 406 (1966), where the competency of a nine-year-old was in issue, the following was stated:
“There is no age below which one is incompetent, as a matter of law, to testify. The test of competency is the capacity of the proposed witness to understand and to relate under*526 the obligation of an oath facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide. This is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness.”
In the case at hand, as in State v. Turner, supra, there is nothing in the record to indicate an abuse of discretion in permitting the child to testify.
We next examine defendant’s contention that the trial court erred in failing to submit to the jury involuntary manslaughter as a permissible verdict. The trial judge did instruct that the jury could return one of three possible verdicts: (1) Murder in the second degree, (2) voluntary manslaughter, or (3) not guilty. Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Foust, 258 N.C. 453" court="N.C." date_filed="1963-01-11" href="https://app.midpage.ai/document/state-v-foust-1340232?utm_source=webapp" opinion_id="1340232">258 N.C. 453, 128 S.E. 2d 889 (1963). Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation or deliberation. State v. Wynn, 278 N.C. 513" court="N.C." date_filed="1971-04-14" href="https://app.midpage.ai/document/state-v-wynn-1265012?utm_source=webapp" opinion_id="1265012">278 N.C. 513, 180 S.E. 2d 135 (1971). Clearly there was sufficient evidence to support the trial court’s instructions on these possible verdicts.
Involuntary manslaughter however has been defined as the unintentional killing of a human being without malice, premeditation or deliberation, which results from the performance of an unlawful act not amounting to a felony, or not naturally dangerous to human life; or from the performance of a lawful act in a culpably negligent way; or from culpable omission to perform some legal duty. State v. Rummage, 280 N.C. 51" court="N.C." date_filed="1971-12-15" href="https://app.midpage.ai/document/state-v-rummage-1275103?utm_source=webapp" opinion_id="1275103">280 N.C. 51, 185 S.E. 2d 221 (1971).
“ ‘Culpable negligence in the law of crimes is something more than actionable negligence in the law of torts . . . Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.’ (Citations omitted.)” State v. Early, 232 N.C. 717" court="N.C." date_filed="1950-11-29" href="https://app.midpage.ai/document/state-v-early-1158806?utm_source=webapp" opinion_id="1158806">232 N.C. 717, 720, 62 S.E. 2d 84 (1950).
Defendant testified that the shooting was purely accidental, and our examination of the record reveals no evidence that the gun was handled so recklessly as to constitute culpable negligence. “ ‘Where the death of a human being is the result of
“Or if you are simply satisfied that at the time the defendant acted in the manner complained of that the discharge of the shotgun was accidental then it would become your duty to return a verdict of not guilty, for it is the law where a shotgun is discharged accidentally though held in the hands of the defendant it is not done intentionally or in the manner described to you under the charge of murder in the second degree or voluntary manslaughter, then the defendant would not be guilty of any offense and it would be your duty to acquit him.”
The trial court properly charged the jury as to the law arising upon the evidence, and the absence of any instruction as to involuntary manslaughter was not error. Also, there was clearly enough evidence to take the case to the jury and withstand defendant’s motion to dismiss. In the trial below, we find
No error.