State v. Willoughby

294 S.E.2d 407 (1982)

STATE of North Carolina v. Paul WILLOUGHBY, Jr.

No. 8111SC931.

Court of Appeals of North Carolina.

September 7, 1982.

*408 Atty. Gen. Edmisten by Asst. Atty. Gen. Richard L. Griffin, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defenders Malcolm R. Hunter, Jr., and Lorinzo Joyner, Raleigh, for defendant-appellant.

WEBB, Judge.

The defendant's first assignment of error is to the court's failure to submit a charge of involuntary manslaughter to the jury in addition to the charge of second degree murder. The defendant contends that his own evidence shows he invited the deceased into the water and refused to help him when the defendant saw he was drowning. The defendant argues that under this evidence, he had a duty to help Mr. Denning and his failure to do so was culpable negligence which proximately caused Mr. Denning's death. This case presents the question of the criminal responsibility of a person who does not go to the aid of one he sees is in trouble. The parties in their briefs have cited no cases from this jurisdiction and we have found none dealing with the question posed in this case. It seems clear that under the common law the defendant would not be guilty of manslaughter for this omission to act. See Frankel, Criminal Omissions: A Legal Microcosm, 11 Wayne L.Rev. 367 (1965); Kirchheimer, Criminal Omissions, 55 Harv.L.Rev. 615 (1942); and Hughes, Criminal Omissions, 67 Yale L.J. 590 (1958). We do not believe we should extend the common law to cover manslaughter by omission in this case. The defendant's first assignment of error is overruled.

In his second assignment of error the defendant contends it was error for the court not to charge the jury on the defense of accident. We do not believe the court should have charged on accident. If Mr. Denning died as the result of an accidental drowning, it was an accident with which the defendant had nothing to do. The jury accepted the version of the incident in accordance with the State's evidence. This evidence showed the defendant committed murder. If the jury had accepted the defendant's version of the event, the jury should have found the defendant not guilty under the charge given to them by the court. It was not necessary for the court to charge on accident.

No error.

MARTIN and WELLS, JJ., concur.