State v. Holshouser

15 N.C. App. 469 | N.C. Ct. App. | 1972

HEDRICK, Judge.

The defendant assigns as error the denial of his timely motions for judgment as of nonsuit.

Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately *472resulting 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, or resulting from the culpably negligent omission to perform a legal duty. 4 Strong, N. C. Index 2d, Homicide, § 6, p. 198; State v. Curtis, 7 N.C. App. 707, 173 S.E. 2d 613 (1970); State v. Honeycutt, 250 N.C. 229, 108 S.E. 2d 485 (1959).

The record on appeal is silent as to many of the relevant circumstances surrounding this shooting. For instance, there is no evidence to indicate the approximate time of the shooting; how and by whom deceased was transported to the hospital; what time she arrived at the hospital; when defendant’s sister and brother-in-law arrived at defendant’s home and whether they witnessed the shooting; and the relative location of the bed and the closet door. Had evidence of these and other surrounding circumstances been brought out it would no doubt have aided in the search for the truth. Whether it would have bolstered the State’s or defendant’s case, we cannot say; but the record would not be left in such an obviously undeveloped condition.

In our opinion when the evidence adduced at the defendant’s trial in the Superior Court is considered in the light most favorable to the State, it tends to show an accidental shooting. There is no evidence in this record tending to show that the defendant intentionally discharged the gun or that he handled it so recklessly as to constitute culpable negligence. State v. Honeycutt, supra; State v. Robinson, 229 N.C. 647, 50 S.E. 2d 740 (1948). Evidence tending to show that the wife said, “Don’t shoot me,” standing alone, is not sufficient to raise an inference that the defendant intentionally pointed the weapon at her, State v. Head, 214 N.C. 700, 200 S.E. 415 (1939), or that he handled it in such a careless and reckless manner as to amount to culpable negligence. State v. Honeycutt, supra.

On this record we hold the Court erred in not allowing the defendant’s motion for judgment as of nonsuit. The judgment is

Reversed.

Judges Brock and Morris concur.