88 N.C. App. 749 | N.C. Ct. App. | 1988
By her first assignment of error, defendant contends the trial court erred in refusing to instruct the jury on self-defense. We agree. Defendant’s plea of not guilty to the felony of second degree murder entitled her to offer evidence that the killing was committed in self-defense, by accident or both; no election was required. State v. Wagoner, 249 N.C. 637, 107 S.E. 2d 83 (1959); State v. Adams, 2 N.C. App. 282, 163 S.E. 2d 1 (1968).
In this case, the State’s evidence tends to show the killing was intentional while defendant’s evidence tends to show that although defendant brandished the knife to protect herself from serious injury, the killing was unintentional. In evaluating the testimony, the jury is free to believe all, some or none of a particular witness’s testimony. State v. Magnum, 245 N.C. 323, 96 S.E. 2d 39 (1957); State v. Simpson, 244 N.C. 325, 93 S.E. 2d 425 (1956).
Before the defendant is entitled to an instruction on self-defense, two questions must be answered in the affirmative: (1) Is there any evidence that the defendant in fact formed a belief that it was necessary to kill [her] adversary in order to protect [herself] from death or great bodily harm, and (2) if so, was that belief reasonable? If both queries are answered in the affirmative, then an instruction on self-defense must be given.
This case is distinguishable from State v. Wallace, 309 N.C. 141, 305 S.E. 2d 548 (1983), in which the Supreme Court held no instructions on self-defense were required. In that case, there was no evidence from which the jury could have found that defendant believed it necessary to kill the deceased in order to save himself from death or great bodily harm or from which it could have found defendant intentionally killed the deceased while protecting himself. In this case, the facts not only required the instructions given by the trial court but also required an instruction on self-defense.
[Defendant's evidence, if believed, could support a verdict of involuntary manslaughter on the theory that the killing was the result of . . . reckless, but unintentional use of [a] knife. In essence, defendant’s position in the case is that the killing was unintentional and accidental for which no criminal responsibility should attach. At most, the killing was the result of [her] reckless use of the knife which would amount to involuntary manslaughter. If, however, the jury should conclude that [she] intentionally wielded the knife, then it [could] acquit [her] on the grounds of self-defense. We think all of these alternatives are supported by the evidence.
State v. Buck, 310 N.C. 602, 606, 313 S.E. 2d 550, 553 (1984).
Defendant also assigns error to the State’s peremptory removal of a potential juror. In view of our decision that defendant is entitled to a new trial, it is not necessary to discuss this assignment of error.
If, at a subsequent trial, the evidence is substantially the same as presented at the initial trial, all of the above instructions must be given to the jury.