State v. Walker

238 S.E.2d 666 (1977)

34 N.C. App. 485

STATE of North Carolina v. Albert Lebert WALKER, Jr.

No. 7723SC300.

Court of Appeals of North Carolina.

November 16, 1977.

*667 Atty. Gen. Rufus L. Edmisten by Associate Atty. D. Grimes, Raleigh, for the State.

Gregory & Joyce by Dennis R. Joyce, Wilkesboro, for defendant-appellant.

CLARK, Judge.

The defendant brings forward in his brief only one assignment of error: that the trial judge, in instructing the jury on involuntary manslaughter, erred in stating that "the defendant's act was unlawful in using a deadly weapon in assaulting or shooting Harrison Shores."

A defendant may, in an appropriate factual situation, under his plea of not guilty, rely on more than one defense, e. g., (1) self-defense, and (2) accident. See State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83 (1959), where the defendant's evidence tended to show that the pistol was not intentionally fired but discharged accidentally.

In the case sub judice defendant's evidence did not tend to show that the pistol was fired accidentally; it tended to show that defendant did not intend for the bullet to strike Shores but that he intended to fire to the right of his head for the purpose of scaring him. Under these circumstances this evidence does not present the defense of death by accident. See State v. Price, 271 N.C. 521, 157 S.E.2d 127 (1967).

The trial court properly instructed the jury on the right of the defendant to defend himself. After charging on second-degree murder and voluntary manslaughter, the court instructed as follows: "If you do not find the defendant guilty of second degree murder or voluntary manslaughter but the state has proven beyond a reasonable doubt that he did not act in self-defense, then you must determine whether the defendant is guilty of involuntary manslaughter."

The jury, when it considered the crime of involuntary manslaughter, had rejected self-defense. Since defendant was not acting in self-defense, he was acting unlawfully in pointing the gun close to Shores and firing it for the purpose of scaring him, as his testimony tends to show. It is well established that "no man by the show of violence has the right to put another in fear and thereby force him to leave a place where he has a right to be." State v. Martin, 85 N.C. 509, 510 (1881); State v. Douglas, 268 N.C. 267, 150 S.E.2d 412 (1966); State v. Price, supra. The pointing of a gun without legal justification is a violation of G.S. 14-34.

We find no error in the instruction that the defendant's act was unlawful. Nor do we find prejudicial error in the trial court's instructions on the contentions of the State.

All of the evidence in the case before us tends to show an intentional shooting and, thus, at the least, voluntary manslaughter. Though it was erroneous to charge on involuntary manslaughter, the verdict and judgment is permitted to stand since it is favorable to defendant. State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923).

No error.

HEDRICK and VAUGHN, JJ., concur.