State v. WilliamsAnnotate this Case
71 S.E.2d 138 (1952)
235 N.C. 752
STATE v. WILLIAMS.
Supreme Court of North Carolina.
June 11, 1952.
*139 Harry McMullan, Atty. Gen. and T. W. Bruton, Asst. Atty. Gen., and Robert B. Broughton, Member of Staff, Raleigh for the State.
Gold, McAnally & Gold, High Point, for defendant appellant.
On defendant's own statement, he voluntarily entered into an affray with the deceased, in the course of which deceased was fatally wounded. No element of selfdefense is made to appear. Therefore, on his own statement, defendant is at least guilty of manslaughter. He contends, however, that he should not have been convicted of murder in the second degree and that the jury was led to render that verdict by the failure of the trial judge to give due emphasis to and clearly charge the jury on the law arising on his evidence tending to show that the homicide was not an intentional killing, but was the result of an accident. His exception directed to this alleged error is the only one in the record which merits discussion.
An intent to inflict a wound which produces a homicide is an essential element of murder in the second degree. State v. Lamm, 232 N.C. 402, 61 S.E.2d 188; State v. Chavis, 231 N.C. 307, 56 S.E.2d 678; State v. Payne, 213 N.C. 719, 197 S.E. 573. Therefore, to convict a defendant of murder in the second degree, the State must prove that the defendant intentionally inflicted the wound which caused the death of the deceased.
When it is made to appear that death was caused by a gunshot wound, testimony tending to show that the weapon was fired in a scuffle or by some other accidental means is competent to rebut an intentional shooting. No burden rests on the defendant. He merely offers his evidence to refute one of the essential elements of murder in the second degree. If upon a consideration of all the testimony, including the testimony of the defendant, the jury is not satisfied beyond a reasonable doubt that the defendant intentionally killed deceased, it should return a verdict of not guilty of murder in the second degree.
In this case, the trial judge clearly instructed the jury that it must find that defendant intentionally killed deceased before it could return a verdict of murder in the second degree. In detailing the defendant's contention that the pistol was fired accidentally, the court sufficiently covered this phase of the case by saying: "On the other hand, the defendant says * * * that he did not intentionally kill him and that he had no idea of killing the deceased; * * * that the deceased grabbed the pistol and in the struggle the pistol went off and shot the deceased and he had no intent or desire to shoot and kill the deceased in any way * * *."
The court further charged the jury on the law of involuntary manslaughter, where a homicide unintentionally results from the commission of "some unlawful act not amounting to a felony."
Thus, it appears that the defendant was accorded the full benefit of his testimony. Of course, the charge would have been more complete had the court instructed the jury fully that if they found that while defendant and deceased were scuffling over the pistol, it accidentally fired and inflicted the wound which caused the death of the deceased, it should not return a verdict of *140 guilty of murder in the second degree. Even so, that is simply another way of saying just what the charge did say. In the absence of any prayer for instructions amplifying the law in this respect, State v. McLean, 234 N.C. 283, 67 S.E.2d 75; State v. Gordon, 224 N.C. 304, 30 S.E.2d 43, we must hold that the charge met the requirements of the law.
In the trial below, we find