State v. CrispAnnotate this Case
307 S.E.2d 776 (1983)
STATE of North Carolina v. Lance CRISP, Sr.
Court of Appeals of North Carolina.
October 18, 1983.
*778 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Barry S. McNeill, Raleigh, for the State.
McKeever, Edwards, Davis & Hays, by Fred H. Moody, Jr., Bryson City, for defendant-appellant.
Defendant contends the court erred to his prejudice in submitting to the jury the possible verdict of involuntary manslaughter. Resolution of this question requires a two-step analysis: (1) whether the evidence in the record will support a verdict of involuntary manslaughter, and (2) if not, whether erroneous submission of the possible verdict was prejudicial error.
Our Supreme Court has defined involuntary manslaughter as "the unintentional killing of a human being without either express or implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence." State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 916 (1978) (citations omitted). "The crux of [involuntary manslaughter] is whether an accused unintentionally killed his victim by a wanton, reckless, culpable use of a firearm or other deadly weapon." State v. Wrenn, 279 N.C. 676, 683, 185 S.E.2d 129, 133 (1971).
The record in the instant case is devoid of any evidence that defendant shot Cable "by some unlawful act not amounting to a felony or naturally dangerous to human life." None of the witnesses, including Ms. Beck, identified any "unlawful act" allegedly committed by defendant which resulted in the unintentional killing of Leonard Cable. We turn, then, to the question whether the evidence shows "an act or omission constituting *779 culpable negligence" on the part of defendant.
The law is clear that the fact that a shooting occurred does not, standing alone, demonstrate culpable negligence. See State v. Church, 265 N.C. 534, 144 S.E.2d 624 (1965), State v. Honeycutt, 250 N.C. 229, 108 S.E.2d 485 (1959). There must be some identifiable act or omission on the part of the defendant which was criminally negligent and which proximately caused the death of the victim. State v. Everhart, 291 N.C. 700, 231 S.E.2d 604 (1977). We thus examine the evidence produced at trial, considered in the light most favorable to the State, to see whether the evidence establishes such an act or omission. The only evidence produced by the State in support of an unintentional killing is derived from one of the several versions of the incident testified to by Ms. Beck. She indicated that the defendant and the victim struggled for the gun, and the gun discharged. We note that this version is consistent with defendant's statement to an officer at the scene that defendant attempted to prevent Cable's suicide by grabbing the gun. The question, then, resolves itself into whether a struggle for the gun under the circumstances here presented constitutes "wanton, reckless, culpable use of a firearm." We hold that it does not.
State v. Lindsay, 45 N.C.App. 514, 263 S.E.2d 364 (1980) involved facts similar to those found here. In Lindsay there was evidence that the decedent had held a gun to her head, that defendant attempted to take the gun away, and that the gun discharged, fatally wounding the victim. On these facts this court held that the trial court erred in submitting involuntary manslaughter as a possible verdict, saying that "[t]here is no evidence that the shooting resulted from reckless handling of the firearm." Id. at 516, 263 S.E.2d at 366. Because the evidence in the present case, like that in Lindsay, fails to demonstrate that defendant was reckless in his handling of the gun, we hold that the trial court erred in submitting to the jury the possible verdict of involuntary manslaughter. We must thus consider the critical question whether the error was prejudicial to the defendant.
In deciding whether submission of involuntary manslaughter was prejudicial error under the facts here presented, we are guided by the words of our Supreme Court in State v. Ray, 299 N.C. 151, 167, 261 S.E.2d 789, 799 (1980):Whether such an error is harmless depends... upon the facts and circumstances peculiar to each case. We hold simply that the facts and circumstances peculiar to the instant case warrant a conclusion that, absent the erroneous submission of involuntary manslaughter, there is a reasonable possibility that the jury would have returned a verdict of acquittal. The error complained of was therefore prejudicial to the defendant.
The evidence in Ray was uncontradicted in establishing an intentional killing, which the defendant alleged was committed in self-defense. State v. Cason, 51 N.C.App. 144, 275 S.E.2d 221 (1981) also involved an intentional killing allegedly committed in self-defense. In each case, our appellate courts held that the evidence established a "reasonable possibility" that the defendant would have been acquitted of all wrongdoing had not the judge erroneously submitted the verdict of involuntary manslaughter.
In the present case Ms. Beck's testimony about the struggle for the gun, coupled with the defendant's statement that Cable was shot when defendant tried to take the gun from him in an effort to prevent his suicide, raises a clear question whether Cable's death was the result of an accident. Because the record discloses a reasonable possibility that defendant could have been acquitted of voluntary manslaughter on the grounds of accident, the submission to the jury of involuntary manslaughter when there was no evidence to support it was prejudicial error.
*780 Finally, we reiterate the admonitions implicit in Judge Webb's statements in Cason. Our trial judges in homicide cases arising out of the alleged intentional use of a deadly weapon would be well-advised not to submit involuntary manslaughter as a possible verdict where there is no evidence to support it. In addition to committing the prejudicial error already discussed, the trial judge who submits involuntary manslaughter under these circumstances makes his duty of declaring and explaining the law arising on the evidence impossible to fulfill; in such a case, the court's instructions can only result in "confusion worse confounded." The present case demonstrates such confusion. After declaring and explaining the law arising on the evidence with respect to second degree murder and voluntary manslaughter, the trial judge defined involuntary manslaughter and instructed the jury thatIf you find from the evidence ... that on or about the 19th day of April, 1982, the Defendant Lance Crisp, Sr., intentionally pointed a loaded 30-30 rifle at Cable when not exercising his right of defense of his son, or otherwise grasped and waved and handled the rifle in a criminalthat is, the 30-30 rifle introduced into evidence as State's Exhibit 6, in a criminally negligent way thereby proximately causing Leonard Cable's death, then it would be your duty to return a verdict of guilty of involuntary manslaughter. However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty. Or if you find that the deceased, Leonard Cable, died by accident or misadventure, or that the State has failed to prove beyond a reasonable doubt that Defendant did not act in proper defense of his son, your verdict must be not guilty.
The problem with the quoted instruction is that there is no evidence that the defendant "intentionally pointed a loaded 30-30 rifle" at Cable; even assuming that defendant did point the gun at Cable, there is not one scintilla of evidence that such act was the proximate cause of Cable's death. Furthermore, it is significant, we think, that the judge mentioned the defense of accident only in relation to the offense of involuntary manslaughter. Obviously, if the killing was accidental, the jury should have been instructed to find the defendant not guilty of any offense. Moreover, the court's instructions with respect to "defense of a family member" adds to the confusion. Assuming arguendo that there is some evidence from which the jury could find that the defendant intentionally shot Cable in defense of his son, the instruction is clearly misplaced in relation to involuntary manslaughter under the circumstances here presented, since the very definition of involuntary manslaughter emobodies an unintentional killing.
Our concern is that when a possible verdict of involuntary manslaughter is erroneously submitted, the jury, rather than struggling with the confusing and contradictory instructions occasioned by the error, might resolve its dilemma by convicting of involuntary manslaughter and acquitting the defendant of murder or voluntary manslaughter, resulting in a manifest miscarriage of justice.
For the reasons set out herein, the judgment is reversed and the cause is remanded to the Superior Court for the entry of an order discharging the defendant.
Reversed and Remanded.
WEBB and HILL, JJ., concur.