State v. Walker , 22 N.C. App. 22 ( 1974 )

205 S.E.2d 328 (1974) 22 N.C. App. 22

STATE of North Carolina
v.
Mae WALKER.

No. 7418SC439.

Court of Appeals of North Carolina.

June 5, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Raymond W. Dew, Jr., Raleigh, for the State.

Asst. Public Defender of the Eighteenth Judicial Dist. Richard S. Towers, Greensboro, for defendant.

BRITT, Judge.

Defendant first assigns as error the denial of her motion for judgment as of nonsuit interposed at the close of all the evidence. The evidence, viewed in the light most favorable to the State as is required upon the motion, tended to show in pertinent part:

Defendant and Leggett, the victim, had lived together on Windley Street in High Point for two years. On 2 December 1972, Leggett arrived at his home about four p. m. and, after going back out for a half an hour and returning, began to drink intoxicants. Following the evening meal, defendant and Leggett decided to go out and, accompanied by Dianne Walker, they visited in the homes of two friends. During this time Leggett continued drinking and became intoxicated. Throughout the evening he fussed at defendant, cursed her, said that he should kill her, and that she knew he was "going to get" her. Thereafter, Leggett and defendant returned to their home, letting Dianne Walker out on the way. The fussing continued after they returned home, with defendant arguing back as they prepared for bed. Leggett got into bed, putting a loaded pistol which he had carried throughout the evening, on a chair at the head of the bed. Defendant left the bedroom and went into the kitchen. Upon her return to the bedroom, Leggett called defendant a "name" and started reaching for the pistol. Defendant grabbed the pistol, cocked it, and fired, the bullet hitting Leggett in his head. Leggett died at about five the next morning from brain damage due to the bullet wound.

We hold that the evidence was sufficient to overcome the motion for nonsuit.

On her second assignment of error, defendant contends the court erred in failing to charge the jury that they could find defendant guilty of involuntary manslaughter. This assignment has no merit. The trial judge must instruct the jury on a lesser included offense when there is evidence to sustain such a verdict. State v. Mays, 14 N.C.App. 90, 187 S.E.2d 479 (1972). In State v. Wrenn, 279 N.C. 676, 683, 185 S.E.2d 129, 133 (1971), we find: "The crux of that crime [involuntary manslaughter] is whether an accused unintentionally killed his victim by a wanton, reckless, culpable use of a firearm or other deadly weapon. (Citations.)" The evidence in this case shows an intentional firing of the pistol; therefore, the trial judge was not required to charge on involuntary manslaughter.

On her third assignment of error, defendant submits that the court failed to charge that defendant could use as much force as was apparently necessary under the circumstances. In charging upon the elements of self-defense, the court stated that it would be necessary for defendant to satisfy the jury ". . . [t]hat the defendant in this case did not use excessive force, that is, more force than reasonably appeared to her to be necessary at the time. Again, it is for you the jury to determine the reasonableness of the force used by the defendant under all of the circumstances as they appeared to her at the time." It is implicit in this statement that defendant could use that force apparently necessary. The assignment is overruled.

Defendant's fourth assignment of error, to the entry of judgment, is formal and dependent upon her other assignments. For the reasons stated above this assignment is also overruled.

No error.

HEDRICK and CARSON, JJ., concur.