State v. Wrenn ( 1971 )

HUSKINS, Justice.

Defendant assigns as error the failure of the trial court to submit manslaughter as a permissible verdict.

Where, under the bill of indictment, it is permissible to convict defendant of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Riera, 276 N.C. 361, 172 S.E. 2d 535 (1970). Erroneous failure to submit the question of defendant’s guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the court’s charge. State v. Davis, 242 N.C. 476, 87 S.E. 2d 906 (1955). This principle applies, however, only in those cases where there is evidence of guilt of the lesser degree. State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). If all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree, the principle does not apply and the court correctly refuses to charge on the unsupported lesser degree. State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971), and cases cited. See State v. Freeman, 275 N.C. 662, 170 S.E. 2d 461 (1969), for discussion of the law in this and other jurisdictions when there is evidence sufficient to require submission of manslaughter but the jury convicts of murder in the first degree.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. 14-17; State v. Lamm, 232 N.C. 402, 61 S.E. 2d 188 (1950). Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963). Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Benge, 272 N.C. 261, 158 S.E. 2d 70 (1967). 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. Foust, supra; State v. Honeycutt, 250 N.C. 229, 108 S.E. 2d 485 (1959); State v. Satterfield, 198 N.C. 682, 153 S.E. 155 (1930).

If the State has satisfied the jury beyond a reasonable doubt that defendant intentionally shot his wife with a shotgun and thereby proximately caused her death, “two presumptions arise: (1) that the killing was unlawful, and (2) that it was done with malice; and, nothing else appearing, the defendant would be guilty of murder in the second degree.” State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969); State v. Propst, 274 N.C. 62, 161 S.E. 2d 560 (1968). Justice Bobbitt (now Chief Justice) accurately analyzed these principles in State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322 (1955), as follows:

“When the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree. In State v. Gregory, 203 N.C. 528, 166 S.E. 387 [1932], where the defense was that an accidental discharge of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an intentional killing with a deadly weapon; and since the Gregory case it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression, intentional killing, is not used in the sense that a specific intent to kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. [Citations omitted.] A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions. . . . The presumptions do not arise if an instrument, which is per se or may be a deadly weapon, is not intentionally used as a weapon, e.g., from an accidental discharge of a shotgun.”

Here, the presumptions arise if the jury finds, under proper instructions, that defendant intentionally shot his wife and thereby caused her death. Conversely, they do not arise if the jury finds the shotgun accidentally discharged, resulting in her death. Defendant’s assertion that the killing of his wife with a deadly weapon was accidental is not an affirmative defense which shifts the burden of proof to him to exculpate himself from a charge of murder. On the contrary, it is merely a denial that the defendant has committed the crime, and the burden remains on the State to prove a homicide resulting from the intentional use of a deadly weapon before any presumption arises against the defendant. State v. Phillips, 264 N.C. 508, 142 S.E. 2d 337 (1965). Accord, State v. Williams, 235 N.C. 752, 71 S.E. 2d 138 (1952).

Although the State’s evidence tends to show an intentional killing with malice and with premeditation and deliberation, defendant’s evidence is to the effect that he only intended to scare his wife and had no intention of killing her; that in the scuffle between the parties the shotgun went off accidentally. In this setting, and with credibility a matter for the jury, the court should have submitted involuntary manslaughter with appropriate instructions. “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.” State v. Foust, supra (258 N.C. 453, 128 S.E. 2d 889). As it relates to involuntary manslaughter, intent is not an issue. The crux of that crime is whether an accused unintentionally killed his victim by a wanton, reckless, culpable use of a firearm or other deadly weapon. State v. Phillips, supra (264 N.C. 508, 142 S.E. 2d 337). Accord, State v. Brooks, 260 N.C. 186, 132 S.E. 2d 354 (1963); State v. Griffin, 273 N.C. 333, 159 S.E. 2d 889 (1968).

Since the evidence offered by defendant, if believed by the jury, is sufficient to support a verdict of involuntary manslaughter, which is a lesser degree of the crime charged in the bill of indictment, the court erred in excluding it from the list of permissible verdicts. This error entitles defendant to a new trial.

Discussion of the remaining assignments of error is deemed unnecessary. However, it is not amiss to call attention to the fact that the use of the phrase “natural and probable result” in homicide charges has been expressly disapproved. “The crucial question is whether a wound inflicted by an unlawful assault proximately caused the death — not whether death was a natural and probable result of such a wound and should have been foreseen. Foreseeability is not an element of proximate cause in a homicide case where an intentionally inflicted wound caused the victim’s death.” State v. Woods, 278 N.C. 210, 219, 179 S.E. 2d 358, 363 (1971).

New trial.