State v. Wright , 28 N.C. App. 481 ( 1976 )

221 S.E.2d 745 (1976) 28 N.C. App. 481

STATE of North Carolina
v.
Bobby Ray WRIGHT.

No. 7520SC773.

Court of Appeals of North Carolina.

February 4, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Cynthia Jean Zeliff, Raleigh, for the State.

Coble, Morton, Grigg & Odom by Ernest H. Morton, Jr., Albemarle, for defendant appellant.

HEDRICK, Judge.

The defendant assigns as error the failure of the trial court to instruct the jury "on the law of a shooting by accident or misadventure" and the failure of the court "to state the defendant's evidence on a shooting by accident or misadventure to an extent necessary to explain the application of the law thereto".

Every "substantial feature" of the case arising on the evidence must be presented to the jury even without a special request for instructions on the issue. State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974); State v. Hickman, 21 N.C.App. 421, 204 S.E.2d 718 (1974). It is the statutory duty of the trial judge to "declare and explain the law arising on the evidence given in the case". N.C.G.S. 1-180.

The defendant contends and the defendant's evidence tends to show that he never intended to shoot Bennett but that the gun fired accidentally as the defendant was attempting to make Bennett leave his house.

A review of the judge's charge to the jury shows that although the court in reviewing the evidence for the defendant stated,

". . . the victim grabbed the barrel and in the tussle made the gun fire. That he didn't intend to shoot the victim.

That he had no intention of shooting him. That the gun was fired by accident or misadventure",

there is nowhere in the charge any explanation of the law arising from a shooting by accident or misadventure nor is there any attempt to explain accident or misadventure as it would apply to the evidence of this case.

The defendant's evidence of accident or misadventure is a substantial feature of the case. See, State v. Floyd, 241 N.C. 298, 84 S.E.2d 915 (1954); State v. Moore, 26 N.C.App. 193, 215 S.E.2d 171 (1975); State v. Douglas, 16 N.C.App. 597, 192 S.E.2d 643 (1972), cert. denied, 282 N.C. 583, 193 S.E.2d 746 (1973). The failure of the trial judge to declare and explain the law of accident or misadventure as it applies to this case, even in the absence of a request for such instructions is prejudicial error for which the defendant is entitled to a new trial.

We do not discuss defendant's other assignment of error since it is not likely to occur at a new trial.

New trial.

PARKER and ARNOLD, JJ., concur.