State v. Daniels , 87 N.C. App. 287 ( 1987 )

360 S.E.2d 470 (1987) 87 N.C. App. 287

STATE of North Carolina
v.
Angela Austin DANIELS.

No. 8719SC88.

Court of Appeals of North Carolina.

October 6, 1987.

Atty. Gen. Thornburg by Associate Atty. Gen. Melissa L. Trippe, Raleigh, for State.

Griggs, Scarbrough & Rogers by James E. Scarbrough and William F. Rogers, Jr., Kannapolis, for defendant-appellant.

PHILLIPS, Judge.

Based upon four assignments of error defendant makes three different contentions concerning the evidence, as follows: That it does not support the finding of involuntary manslaughter and thus the court erred in charging the jury thereon and in not setting the verdict against her aside; that it shows that the killing was in self defense as a matter of law; and that its greater weight is against the verdict. Redundancy can be avoided by discussing these contentions, neither of which has merit, together. Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). One way of proving involuntary manslaughter, according to State v. Greene, 314 N.C. 649, 336 S.E.2d 87 (1985) and State v. Ray, 299 N.C. 151, 261 S.E.2d 789 (1980), is to present evidence which indicates that the killing was the result of an act done in a culpable or criminally negligent way. Evidence indicating that Kennedy's death was caused by defendant inadvertently stabbing him in the chest while not attempting or intending to do so clearly meets that requirement. Nor does the evidence necessarily establish that defendant acted in self defense; because an element of self defense is that the defendant reasonably believed it was necessary to kill the assailant in order to avoid being killed or seriously injured, State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982), and defendant's own testimony tends to show that she did not believe it was necessary to kill Kennedy, since she did not intend to either stab or hurt him. As to the contention concerning the greater weight of the evidence, defendant's motion upon that ground was addressed to the judge's sound discretion, and in denying it we see no abuse.

Defendant's only other contention is that the judge improperly charged the jury regarding self defense. Since this ground was waived by her failure to timely object to the instruction, Rule 10(b)(2), N.C. Rules of Appellate Procedure, pursuant to her request we have considered the contention under the "plain error" rule set out in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), and find no prejudicial error, "plain" or otherwise, for two reasons. First, the charge was in accord with State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); and second, since self defense is not a defense to a charge of involuntary manslaughter, State v. Teel, 65 N.C.App. 423, 310 S.E.2d 31 (1983), and the jury found defendant not guilty of the charges to which self defense was applicable, the error in charging thereon, if any, could not have been prejudicial.

No error.

HEDRICK, C.J., and ORR, J., concur.