State v. GriffinAnnotate this Case
159 S.E.2d 889 (1968)
273 N.C. 333
STATE of North Carolina v. Donald Lee GRIFFIN.
Supreme Court of North Carolina.
March 20, 1968.
*890 T. W. Bruton, Atty. Gen., and Dale Shepherd, Staff Attorney for the State.
Frank P. Cooke, Gastonia, for defendant.
When the State undertakes a prosecution for unlawful homicide, it assumes the burden of producing evidence sufficient to prove that the deceased died as the result of a criminal act committed by the defendant. State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Palmer, 230 N.C. 205, 52 S.E.2d 908. Any unjustifiable and reckless or wanton use of a firearm which jeopardizes the safety of *891 another constitutes a criminal act, State v. Turnage, 138 N.C. 566, 49 S.E. 913; and, if an unintentional killing results, it is an unlawful homicide. State v. Brooks, 260 N.C. 186, 132 S.E.2d 354; State v. Foust, 258 N.C. 453, 128 S.E.2d 889; State v. Hovis, 233 N.C. 359, 64 S.E.2d 564.
Defendant's first assignment of error presents the question whether the evidence, taken in the light most favorable to the State, was sufficient to support a finding that he was handling the gun in a culpably negligent manner at the time it fired and killed his wife. State v. Honeycutt, 250 N.C. 229, 108 S.E.2d 485.
The brief for the State contains this statement: "[T]here was evidence of death occurring under mysterious circumstances, which could lead to the conclusion that it was perpetrated by culpable negligence." Conceding the truth of this assertion, there remains unanswered the question, whose was the culpable negligence? Did deceased herself cause the pistol to discharge when she "half-sat" on defendant's lap and on the arm of the big, overstuffed chair, where she had placed the weapon? Did it fire when she embraced defendant while holding the pistol in her hand? If not, did any act of defendant's cause the gun to fire? There is no evidence that he had the pistol in his hand when it fired or that he had touched it immediately before. Had deceased been shot while she and defendant were tossing the pistol back and forth, or when defendant was twirling it on his finger, an entirely different situation would be presented.
The evidence of both the State and defendant tends to show an accidental killing, and there is no evidence that it was defendant who caused the gun to discharge. His motion for nonsuit made at the close of all the evidence should have been allowed. State v. Pope, 252 N.C. 356, 113 S.E.2d 584.