On defendant’s own statement, be voluntarily entered into an affrаy with the deceased, in the course of which deceаsed was fatally wounded. No element of self-defense is made to appear. Therefore, on his own statement, defendant is at least guilty of manslaughter. He contends, howеver, that he should not have been convicted of murder in the second degree and that the jury was led to render that verdict by the failure of the trial judge to give due emphasis to and clearly charge the jury on the law arising on his evidencе tending to show that the homicide was not an intentional killing, but was thе result of an accident. His exception directed to this alleged error is the only one in the record which merits disсussion.
An intent to inflict a wound which produces a homicide is an essential element of murder in the second degree.
S. v. Lamm,
When it is made to appear that deаth was caused by a gunshot wound, testimony tending to show that the weapon was fired in a scuffle or by some other accidental means is competent to rebut an intentional shoоting. No burden rests on the defendant. He merely offers his evidenсe to refute one of the essential elements of murdеr in the second degree. If upon a consideration of all the testimony, including the testimony of the defendant, the jury is not satisfied beyond a reasonable doubt that the defendant intеntionally killed deceased, it should return a verdict of not guilty оf murder in the second degree.
In this case, the trial judge clearly instructed the jury that it must find that defendant intentionally killed decеased before it could return a verdict of murder in the seсond degree. In detailing the defendant’s contention that the pistol was fired accidentally, the court sufficiently cоvered this phase of the case by saying: “On the other hand, thе defendant says . . . that he did not intentionally kill him and that he had no idea of killing the deceased; . . . that the deceased grabbed the pistol and in the struggle the pistol went off and shot the dеceased and he had no intent or desire to shoot and kill the deceased in any way . . .”
The court further charged the jury on the law of involuntary manslaughter, where a homicide unintentionally results from the commission of “some unlawful act not amounting to a felony.”
*754
Thus, it appears that the defendant was accorded the full benefit of his testimony. Of course, the сharge would have been more complete had the court instructed the jury fully that if it found that while defendant and decеased were scuffling over the pistol, it accidentally fired and inflicted the wound which caused the death of the deceased, it should not return a verdict of guilty of murder in the secоnd degree. Even so, that is simply another way of saying just what the charge did say. In the absence of any prayer for instructions amplifying the law in this respect,
S. v. McLean,
In the trial below, we find
No error.