State v. Efird

245 S.E.2d 226 (1978)

37 N.C. App. 66

STATE of North Carolina v. Floyd Lee EFIRD.

No. 7720SC875.

Court of Appeals of North Carolina.

June 20, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. George W. Lennon, Raleigh, for the State.

Coble, Morton, Grigg & Odom by Ernest H. Morton, Jr., Albemarle, for defendant.

BROCK, Chief Judge.

Defendant assigns as error the failure of the trial court to instruct the jury on the law of shooting by accident or misadventure and the failure of the court to state defendant's evidence on shooting by accident or misadventure to the extent necessary to explain the application of the law thereto. This assignment has no merit.

Defendant contends, and his testimony tends to show, that he did not intend to shoot his stepson, that he did intend to scare his stepson by firing the gun, and that *227 at the time he fired the gun, his wife was tussling with him and was holding his arm. Defendant does not deny that he fired the gun; he does not contend that the gun discharged accidentally. The evidence is uncontradicted that Jeffrey Allen Turner received not one, but three separate gunshot wounds.

In our opinion, based upon the evidence as noted, defendant was not entitled to an instruction on shooting by accident or misadventure. All of the cases which have come to our attention holding that such an instruction was required have involved evidence tending to show that the discharge of the firearm was accidental; that it discharged during a struggle or when grabbed or struck by the victim while in the defendant's hands. See State v. Floyd, 241 N.C. 298, 84 S.E.2d 915 (1954); State v. Best, 31 N.C.App. 389, 229 S.E.2d 202 (1976); State v. Wright, 28 N.C.App. 481, 221 S.E.2d 745 (1976); State v. Moore, 26 N.C.App. 193, 215 S.E.2d 171, cert. denied, 288 N.C. 249, 217 S.E.2d 673 (1975); State v. Douglas, 16 N.C. App. 597, 192 S.E.2d 643 (1972), cert. denied, 282 N.C. 583, 193 S.E.2d 746 (1973). Where, as in the instant case, all of the evidence indicates that defendant intended to fire and did fire the shot or shots which resulted in injury to the victim, defendant is not entitled to an instruction on shooting by accident or misadventure. This assignment of error is overruled.

By his next assignment of error, defendant contends that the trial court failed to state defendant's evidence tending to negate the element of intent to kill to the extent necessary to explain the application of the law thereto, as required by G.S. 1-180. Examining the charge as a whole, we are of the opinion that the court adequately summarized defendant's evidence; and the judge's application of the law to the evidence was adequate for the jury to understand the issues involved.

We have examined defendant's remaining assignments of error and have found in them no merit. In our opinion, defendant received a fair trial free of prejudicial error.

No error.

VAUGHN and ERWIN, JJ., concur.