State v. Lawrance

380 S.E.2d 156 (1989)

STATE of North Carolina v. Donald Milton LAWRANCE, III.

No. 884SC920.

Court of Appeals of North Carolina.

June 20, 1989.

*157 Atty. Gen. Lacy H. Thornburg by Sr. Deputy Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr., by Asst. Appellate Defender Staples Hughes, Raleigh, for defendant-appellant.

WELLS, Judge.

Defendant contends that the trial court erred in failing to instruct the jury on involuntary manslaughter. The jury received instructions on first and second-degree murder. The trial court must instruct the jury on all substantial and essential issues of the case arising on the evidence presented at trial. State v. Harris, 306 N.C. 724, 295 S.E.2d 391 (1982). When it is possible under the indictment to convict the defendant of a lesser included offense and the evidence supports the lesser charge, the defendant is entitled to receive instructions on the lesser offense as well as the more serious one. State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130 (1943).

Involuntary manslaughter is a lesser included offense of second-degree murder. State v. Greene, 314 N.C. 649, 336 S.E.2d 87 (1985). Second-degree murder is defined as "the unlawful killing of a human being with malice but without premeditation and deliberation." State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). Voluntary manslaughter consists of "the unlawful *158 killing of a human being without malice and without premeditation and deliberation." Id. Involuntary manslaughter is "the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission." Greene, supra.

Defendant testified at trial that at approximately 9:00 a.m. on 8 September 1987 he used an eyedropper to administer medicine to his son, and had to hold the infant's cheeks to ensure that he swallowed it. He then placed the infant in his crib, on his stomach, and left the room. He left home at approximately 11:15 a.m. He further testified that his wife telephoned him at work shortly after 1:15 p.m. to tell him that something was wrong with their son. When he arrived home paramedics informed him that the child was dead.

We hold that the trial court correctly determined that the evidence presented at trial did not support an involuntary manslaughter instruction. Although defendant might not have intended to actually kill his son, the evidence certainly tended to show that he intended to press the child's face into the mattress. This intentional act caused the child's death by suffocation. The presence of an intentional act in the chain of causation leading to death does not automatically render a killing intentional, State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978), so as to preclude an involuntary manslaughter instruction. The instruction is not required, however, regardless of whether the actual killing was intentional or unintentional, when the intentional act leading to death was naturally dangerous to human life. We note that the alternative ground for establishing involuntary manslaughter, a killing proximately caused by a culpably negligent act or omission, is not supported by the evidence in this case.

Defendant did not request an instruction on voluntary manslaughter at trial, nor does he assert on appeal that such instruction should have been given. Because the trial court correctly determined that the evidence did not support an instruction on involuntary manslaughter, we overrule defendant's assignment of error.

No error.

HEDRICK, C.J., and ARNOLD, J., concur.