State v. Davis

190 S.E.2d 434 (1972)

15 N.C. App. 395

STATE of North Carolina v. Faye Marie DAVIS.

No. 7219SC407.

Court of Appeals of North Carolina.

August 2, 1972.

*436 Atty. Gen. Robert Morgan, by Associate Atty. Gen. Walter E. Ricks, III, for the State.

Bell, Ogburn & Redding, by John N. Ogburn, Jr., Asheboro, for defendant appellant.

MORRIS, Judge.

Of the seven assignments of error directed towards the trial court's instructions to the jury, this opinion is based upon *437 the failure of the trial tribunal to submit involuntary manslaughter as a permissible verdict. The trial court instructed the jury they could return a verdict of guilty of murder in the second degree, or a verdict of guilty of voluntary mansalughter, or a verdict of not guilty. Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971), and cases cited therein. Some of the record evidence tends to show that the killing was intentional and a charge upon voluntary manslaughter was justified either upon the theory that defendant shot Jimmy in the heat of passion or that she used excessive force in the exercise of her right of self-defense. See Justice Sharp's dissenting opinion in State v. Wrenn, 279 N.C. 676, 687, 185 S.E.2d 129 (1971).

"Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. . . ." (Citations omitted.) State v. Wrenn, supra, at p. 682, 185 S.E.2d at p. 132. Defendant's testimony is replete with evidence that she unintentionally shot Jimmy and that the discharge of the pistol was accidental. "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.) State v. Foust, 258 N.C. 453, 459, 128 S.E.2d 889, 893 (1963). We hold that the evidence offered by defendant, if believed by the jury, is sufficient to support a verdict of involuntary manslaughter. State v. Lilley, 3 N.C.App. 276, 164 S.E.2d 498 (1968); State v. Batts, 8 N.C.App. 551, 174 S.E.2d 704 (1970). The failure to submit appropriate instructions as to a lesser degree of the crime charged in the bill of indictment was erroneous and so prejudicial as to require a new trial. State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168 (1971); State v. Wrenn, supra.

Because a new trial will be required, discussion of defendant's remaining assignments of error is deemed unnecessary.

New trial.

VAUGHN and GRAHAM, JJ., concur.