State v. Hemphill ( 1991 )

HEDRICK, Chief Judge.

Defendant’s one assignment of error is that the trial court erred in denying his motion to dismiss the charge of second degree murder. He argues that the evidence is insufficient to support a finding of the element of malice.

In State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978), our Supreme Court defined malice as follows:

[I]t comprehends not only particular animosity ‘but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person.’

This Court has said that ‘[mjalice does not necessarily mean an actual intent to take human life; it may be inferential or implied, instead of positive, as when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.’ In such a situation ‘the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist.’

295 N.C. at 578-579, 247 S.E.2d at 916 (citations omitted).

We hold the evidence in the present case is sufficient to support a finding by the jury that defendant acted with malice as defined by Wilkerson. The evidence that defendant shook the baby as well as the expert testimony that the cause of death was “Shaken Baby Syndrome,” which typically results from an infant’s head being held and shaken so violently that the brain is shaken inside the skull causing bruising and tearing of blood vessels on the surface of and inside the brain, is sufficient to show that defendant acted with “recklessness of consequences, . . . though there may be no intention to injure a particular person.”

We hold the trial court properly denied defendant’s motion to dismiss the charge of second degree murder, and that defendant had a fair trial free from prejudicial error.

No error.

Judge EAGLES concurs. Judge Greene dissents.