State v. Godfrey

37 N.C. App. 452 | N.C. Ct. App. | 1978

BRITT, Judge.

Defendant contends first that the court committed prejudicial error in submitting the offense of involuntary manslaughter to the jury as one of the verdicts they could return. This contention has no merit.

Defendant argues that there was no evidence of an unintentional shooting; hence there was no evidence to support a charge of involuntary manslaughter. We disagree with this argument.

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. 6 Strong’s N.C. Index 3d, Homicide § 6.1, p. 537.

G.S. 1-180 requires the trial judge in his charge to the jury to “declare and explain the law arising on the evidence given in the case”. Evidence given in the case includes reasonable inferences raised by the evidence.

Defendant testified that just prior to the shooting, “Flora (Mrs. Marks) run up beside of me and in the scuffle there, the gun went off. I don’t know wher’re I pulled the trigger or not. . . .” On cross-examination he testified that he “leveled” the gun at decedent. Mrs. Marks testified that when the scuffle started “I threw up my hand either to grab the gun or go up against Johnny (decedent) for protection, and the gun went off.”

We think the evidence and inferences therefrom were sufficient to support a finding by the jury that the killing was unintentional and without malice, and that it proximately resulted from the commission of an unlawful act not amounting to a felony by defendant, namely, his pointing a loaded firearm at decedent. State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963).

Our Supreme Court has held that where the evidence is susceptible to the interpretation that the killing was not intentional, the trial court must submit the question of defendant’s guilt of involuntary manslaughter. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969). Assuming, arguendo, that the court did err in submitting the charge of involuntary manslaughter, the error was favorable to defendant. State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923); State v. Walker, 34 N.C. App. 485, 238 S.E. 2d 666 (1977).

Defendant contends next that if the trial court correctly submitted the offense of involuntary manslaughter as a possible verdict, it erred in not instructing the jury that self-defense is a defense to involuntary manslaughter. We find no merit in this contention.

After instructing the jury with respect to the law on second-degree murder and voluntary manslaughter, His Honor gave full instructions on self-defense; he did not do this following his explanation of the law on involuntary manslaughter and we do not think he was required to do so. As was said by Judge Clark, speaking for this court in State v. Walker, supra, page 487, “[t]he jury when it considered the crime of involuntary manslaughter, had rejected self-defense.” We adhere to that statement. See also State v. Moore, supra.

Finally, defendant contends the court erred in instructing the jury as follows:

“. . . However, if the defendant was attacked in a manner which he could not reasonably believe to be murderous, even though he, the defendant, was in his home, he had a duty to retreat as far as he could, consistent with his own safety, before he could kill in self-defense.”

We find no merit in this contention.

It is obvious that the challenged instruction pertained to self-defense. As indicated above, this defense related to second-degree murder and voluntary manslaughter. By their verdict of guilty of involuntary manslaughter, the jury in effect found defendant not guilty of the two more serious charges. Self-defense was not available to defendant on the charge of involuntary manslaughter, State v. Moore, supra; State v. Walker, supra; therefore, assuming, but not deciding, that the instruction was erroneous, the error was not prejudicial.

We conclude that defendant received a fair trial free from prejudicial error.

No error.

Chief Judge BROCK and Judge MITCHELL concur.