State v. Garrett

376 S.E.2d 465 (1989)

STATE of North Carolina v. Michael GARRETT.

No. 8823SC658.

Court of Appeals of North Carolina.

February 21, 1989.

*466 Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Harold M. White, Jr., Raleigh, for the State.

John P. Siskind and John C. Johnston, Jefferson, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant first contends the trial court erred in not allowing his motions to *467 dismiss at the close of the State's evidence and at the close of all evidence "because there was insufficient evidence to go to the jury to prove the crimes as charged." Although the evidence is largely circumstantial, it is clearly sufficient to require submission of the case to the jury and to support a verdict of voluntary manslaughter. This assignment of error is meritless.

Defendant next contends the trial court erred in denying his motions to instruct the jury "on accident because the evidence presented such instructions." This assignment of error has merit.

The trial court has a duty to instruct the jury on all substantial features of the case arising on the evidence. State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974). All defenses arising from the evidence presented during trial, including the defense of accident, are substantial features of a case and therefore warrant instructions. State v. Loftin, 322 N.C. 375, 368 S.E.2d 613 (1988).

The death of a human being as a result of accident attaches no criminal responsibility to the act of the slayer. State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961). Where the killing was unintentional and the perpetrator acted without wrongful purpose in the course of a lawful enterprise and without criminal negligence, a homicide will be excused as an accident. Id.

In the present case, the State offered no eyewitness to the shooting and killing of defendant's brother. As stated before, the evidence against defendant is largely circumstantial. The only evidence as to exactly how the shooting occurred came from defendant himself through the testimony of his sister and mother. Both his sister and mother as witnesses for the State testified that defendant stated that the shooting was accidental. These statements were elicited by the State apparently in an effort to show defendant actually shot his brother, but the State seems to have gotten more than it bargained for. While the testimony of defendant's sister and mother as to what defendant told them was surely sufficient to raise an inference that defendant shot his brother, it also gives rise to an inference from which the jury could find defendant accidentally shot and killed his brother. Therefore we hold that the trial judge erred in not instructing the jury on the defense of accident.

We do not discuss the remaining assignments of error since they are not likely to reoccur at the next trial.

For the reasons stated, defendant is entitled to a new trial.

New trial.

WELLS and LEWIS, JJ., concur.