Dеfendant first assigns as error the trial judge’s denial of his motion to dismiss on grounds of insufficient evidence. Defendant contends that the State failed to show the existence of malice sufficient for the jury to find him guilty of second-degree murder.
The test of the sufficiency of the evidence in a criminal case is whether there is substantial evidence of each essential element of the offense charged, or of a lesser included offense of that charged.
State v. Roseman,
*775 The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every rеasonable inference to be drawn therefrom; ....
State v. Powell,
Second-degree murder is the unlawful killing of a human being with malice, but without premeditation and deliberation.
State v. Duboise,
If the State satisfies the jury beyond a reasonable doubt or if it is admitted that a defendant intentionally assaulted another with a deadly weapon, thereby proximately causing his death, two presumptions arise: (1) that the killing was unlawful and (2) that it was done with malice. Nothing else appearing, the person who perpetrated such assault would be guilty of murder in the second degree.
State v. Jones,
In the instant case, the еvidence tended to show that defendant, known as “Jackie,” threatened one of the victim’s daughters and also stole a gun one week prior to the incident in question; that he inexplicably arrived at the victim’s workplace and drove away with her; that the two were seen parked on a dirt road later that night fighting; that the victim screamed for help just before falling out of the car; that she had been shot three times at close range, with one defensive-type gunshot wound in her hand; that she died as a result of multiple gunshot wounds inflicted by the same gun stolen by defendant; and that, when asked who had done this to her, shе mumbled replies which sounded like “Ubbins,” “Obbins,” “Jack Adams,” “Abrams,” and “Jack.”
We hold that the evidence in this case was sufficient to support a jury finding that defendant intentionally assaulted Mrs. Carroway with a deadly weapon and thereby proximately caused her death. This assignment is overruled.
*776 Defendant next contends that the trial judge erred in failing to instruct on the lesser included offense of voluntary manslaughter. Defendant in essence argues that the circumstances surrounding the shooting are in doubt, and since no one knows what actually occurred, the ambiguity in the evidence would permit the jury to infer that the shooting was a result оf heat of passion upon adequate provocation. We disagree.
Defendant relies for support on the case of
State v. Manning,
In respect to this contention this Court is of the opinion that the fact that defendant and his wife were together in the woods 10 minutes (R. p. 32), as the State’s evidence tends to show, before any shots were heard is a circumstance that requires a charge on manslaughter.
The evidence discloses that there were no eyewitnesses to the shooting, and no one of the State’s witnesses knows what actually took place on this occasion. It rests in speculation.
Our reading of the entire transcript in that case, however, reveals that there is plenary evidence from which a jury might find premeditation, deliberation, and an intentional assault with a deadly weapon from which to presume malice, and none from which it might find heat of passion upon adequate provocation. We, therefore, conclude that the Manning Court incorrectly found error in the failure to instruct on voluntary manslaughter. That portion of Manning that finds error in the failure of the trial judge to instruct on voluntary manslaughter is accоrdingly overruled.
It is the duty of the trial court to instruct the jury on the law applicable to the substantive features of the case arising on the evidence, and when there is evidence to support the lesser in-
*777
eluded offense of voluntary manslaughter, defendant is entitled to have that offense submitted to the jury under proper instructions.
State v. Montague,
In
State v. Hankerson,
If, after the mandatory presumptions are raised, there is no evidence of a heat of passion killing on sudden provocation and no evidence that the killing was in self-defense, Mullaney permits and our law requires the jury to be instructed that defendant must be convicted of murder in the second degree. If, on the other hand, there is evidence in the case of all the elements of heat of passion on sudden provocation the mandatory presumption of malice disappears but the lоgical inferences from the facts proved remain in the case to be weighed against this evidence. If upon considering all the evidence, including the inferences and the evidence of heat of passion, the jury is left with a reasonable doubt as to the existence of malice it must find the defendant not guilty of murder in the second degree and should then consider whether he is guilty of manslaughter.
Id.
at 651,
In order for an accused to reduce the crime of second-degree murder to voluntary manslaughter he must rely on evidence presented by the State or assume a burden to go forward with or produсe some evidence of all elements of heat of passion on sud *778 den provocation. In order to do this, defendant in instant case must have shown three things: first, that he shot the victim Carroway in the heаt of a passion; second, that this passion was provoked by acts of victim Carroway which the law regards as adequate provocation; and, third, that the shooting took place so soоn after the provocation that the passion of a person of average mind and disposition would not have cooled. See 40 Am. Jur. 2d, “Homicide,” § 56 (1968).
This record is barren of any evidence tending tо show that defendant’s passion was provoked by the acts of the victim Carroway which the law regards as adequate provocation. Defendant presented no evidence. The State’s еvidence showed that two passersby observed smoke coming from the automobile occupied by defendant and the victim Carroway. While the occupants were subsequently observed fighting, there is nо evidence that the fight was provoked by the victim Carroway; neither is there evidence of which of the two might have been the aggressor in the fight. Likewise, there is no evidence that the fighting occurred prior to or during the shooting. In fact, the two observers testified that they saw the scuffle after they noticed the smoke coming from the car. In light of the firearms expert’s testimony that guns of the type used could produсe clouds of smoke and did cause loud noise upon discharge, there is an inference, at least, that rather than being provoked by the affray, the shooting actually occurred prior to the scuffle. In аny event, the State’s evidence does not show, and defendant has not gone forward with any evidence to show, heat of passion on sudden provocation.
We therefore hold that the trial judge did not err in failing to instruct on the lesser included offense of voluntary manslaughter.
Defendant contends, finally, that the trial court erred in failing to instruct on the offense of involuntary manslaughter.
The law applicable to defendant’s contention is stated in
State v. Redfern,
Involuntary manslaughter is the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission. State v. Ward,286 N.C. 304 ,210 S.E. 2d 407 .
*779
Id.
at 321,
It seems that, with few exceptions, it may be said that every unintentional killing of a human being proximately caused by a wanton or reckless use of firearms, in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter, (Citations omitted.) (Emphasis added.)
Id.
at 459,
Defendant contends that the mere fact that the evidence shows a scuffle between the victim and him is sufficient to permit the jury to infer that there was no intentional discharge of the weapon. We disagree. Defendant did not testify or put on any evidence in the instant case. The State’s evidenсe tends to show that one week prior to the shooting, defendant had quarreled with members of deceased’s family, had threatened “to get” one of them and had stolen a gun. The evidence further tended to show that, during the scuffle as witnessed on Kiger Road, Mrs. Carroway screamed for help, and that afterwards as she lay on the road, she indicated that someone was responsible for the wounds and mumbled a name which sounded much like defendant’s. The evidence also showed that Mrs. Carroway was shot three times. The State’s evidence, if believed, tends to show an intentional shooting. There is no evidence from which the jury might infer that there was an unintentional discharge of the weapon.
See State v. Gerald,
Defendant received a fair trial, free from prejudicial error.
No error.