State v. Redfern , 291 N.C. 319 ( 1976 )

230 S.E.2d 152 (1976) 291 N.C. 319

STATE of North Carolina
v.
George Lee REDFERN.

No. 116.

Supreme Court of North Carolina.

December 7, 1976.

Atty. Gen. Rufus L. Edmisten by Special Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Rebecca R. Bevacqua, Raleigh, for the State.

R. Wayne Pickett, Concord, for defendant-appellant.

BRANCH, Justice.

Defendant's sole assignment of error attacks the failure of the trial court to charge the jury on the lesser-included offense of involuntary manslaughter.

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. State v. Ward, 286 N.C. 304, 210 S.E.2d 407.

It is unquestioned that the trial judge must instruct the jury as to a lesser-included offense of the crime charged, when there is evidence from which the jury could find that the defendant committed the lesser offense. State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129; State v. Jones, 264 N.C. 134, 141 S.E.2d 27. However, when all the evidence tends to show that the accused committed the crime with which he is charged and there is no evidence of guilt of a lesser-included offense, the court correctly refuses to charge on the unsupported lesser offense. State v. Harris, 290 N.C. 681, 228 S.E.2d 437; State v. Duboise, 279 N.C. 73, 181 S.E.2d 393. "The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 84 S.E.2d 545.

In this case defendant testified as follows:

. . . I shot in the door three times and told him to go home. I went to sling the pistol up again and hit him up there. I fired four shots. . . . When I fired this fourth shot I was aiming in the loft. I didn't intend to hit Mr. McMillian with the fourth shot.

Defendant contends that this evidence would have sustained a verdict of guilty of involuntary manslaughter.

In State v. Foust, 258 N.C. 453, 128 S.E.2d 889, Justice Parker (later Chief Justice), speaking for this Court, stated:

It seems that, with few exceptions, it may be said that every unintentional killing of a human being proximately caused by a wanton or reckless use of firearms, in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter. S. v. Vines, 93 N.C. 493, 53 Am.Rep. 466; S. v. Turnage, 138 N.C. 566, 49 S.E. 913; S. v. Stitt, 146 N.C. 643, 61 S.E. 566; S. v. Bryant, 180 N.C. 690, 104 S.E. 369; S. v. Hovis, [233 N.C. 359, 64 S.E.2d 564] supra; 26 Am.Jur., Homicide, sec. 212; 40 C.J.S. Homicide § 59. [Emphasis ours.]

The controlling facts in instant case are remarkably similar to those in State v. Ward, supra. In Ward Justice Moore, speaking for the Court, stated:

. . . Clearly the evidence did not justify a charge on involuntary manslaughter. Defendant makes no contention that the gun was discharged accidentally. On the contrary she testified, "I went in the back bedroom and I sat there on the bed and then I jumped right up and I run and grabbed the gun and went right in the room. I went through the bedrooms and in the living room. And that's when I fired. But I didn't want to kill him. . . ." (Emphasis added.) By her own statement defendant intentionally discharged the gun under circumstances naturally dangerous to human life.

See also State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.

Here all the evidence, including defendant's own testimony, shows that deceased was fatally wounded when defendant intentionally discharged his pistol under circumstances naturally dangerous to human life. There was no evidence of an accidental discharge of the weapon. Thus, the trial judge did not commit error in failing to charge on the lesser-included offense of involuntary manslaughter since there was no evidence to support such a verdict.

No error.