State v. Best , 79 N.C. App. 734 ( 1986 )

340 S.E.2d 524 (1986)

STATE of North Carolina
v.
James Benjamin BEST.

No. 859SC1041.

Court of Appeals of North Carolina.

March 18, 1986.

Atty. Gen. Lacy H. Thornburg by Special Deputy Atty. Gen. Jo Anne Sanford, Raleigh, for the State.

Asst. Appellate Defender Leland Q. Towns, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

The sole issue presented for review is whether the court erred in failing to submit voluntary manslaughter as a possible verdict. Defendant contends that this evidence supported submission of voluntary manslaughter on three theories: (1) that defendant killed Obie in the heat of passion brought on by adequate provocation; (2) that defendant's evidence showed that he did not intend to kill the deceased but merely to scare him off; and (3) that defendant acted in self defense except he used excessive force in repelling the deceased because he mistakenly believed that the deceased had a pistol.

The trial court must declare and explain the law arising from the evidence. If the evidence could convince the jury to convict the defendant of a lesser included offense, the court has a duty to charge on the lesser included offense. See State v. Pearce, 296 N.C. 281, 250 S.E.2d 640 (1979).

Second degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980). This crime may be reduced to voluntary manslaughter upon a showing that defendant killed his victim in the heat of passion caused by provocation adequate to negate the element of malice. State v. Burden, 36 N.C.App. 332, 244 S.E.2d 204, disc. rev. denied, 295 N.C. 468, 246 S.E.2d 216 (1978). Words alone are never sufficient provocation to mitigate second degree murder to voluntary manslaughter. State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975). The evidence presented by defendant is insufficient to establish that the killing was done in the heat of passion upon adequate provocation. Thus, his first theory must fail.

Defendant's second theory supporting an instruction on voluntary manslaughter also fails. Defendant produced no evidence from which a rational jury could find voluntary manslaughter under the theory that defendant did not intend to kill the victim when he intentionally shot at the victim with a rifle at close range.

Defendant's third theory supporting an instruction on voluntary manslaughter is compelling. Second degree murder may be reduced to voluntary manslaughter if a killing results from the use of excessive force in the exercise of self defense. Excessive force in the exercise of self defense has been described by our Supreme Court as that force used by "[a] defendant who honestly believes that he must use deadly force to repel an attack but whose belief is found by the jury to be unreasonable under the surrounding facts and circumstances...." State v. Jones, 299 N.C. 103, 112, 261 S.E.2d 1, 8 (1980). In the instant case, defendant testified that the victim had threatened to kill defendant and that immediately prior to the shooting defendant heard a pistol cock after seeing the victim reach under the seat. We cannot say that the evidence adduced at trial demonstrates as a matter of law that defendant did not have an honest belief that deadly force was necessary to repel the victim. The trial court held the same view of the evidence to the extent that it believed the evidence supported an instruction on self defense.

Whether excessive force was used in self defense is ordinarily a jury question. It is difficult to imagine a homicide case in which the evidence supports an instruction on self defense but not an instruction on voluntary manslaughter based upon an excessive force theory. See State v. Thomas, 184 N.C. 757, 114 S.E. 834 (1922). We hold that the trial court erred in failing to instruct the jury on voluntary manslaughter and order a new trial.

New trial.

WEBB and PARKER, J., concur.