Bolyard v. Commonwealth ( 1990 )

Opinion

BARROW, J.

In this criminal appeal we consider whether an instruction on involuntary manslaughter should have been given when the defendant contended that he acted in self-defense. Since no evidence supports the assertion that homicide resulted from an accident, we concur with the trial court’s refusal to give such an instruction.

The defendant shot and killed his father-in-law during a domestic quarrel. The defendant was at the residence of his estranged wife’s parents, and engaged in a argument with his wife and members of her family. During the argument the wife’s father came into the front yard where the argument was taking place and engaged in argument with the defendant. The father then returned to the house. The defendant continued to argue with his wife and his wife’s mother when, according to the defendant, the wife’s father came out of the house with a gun. The other witnesses testified that the wife’s father only had a cigarette in his hand. The defendant obtained a shotgun from his automobile. The wife’s mother grabbed the shotgun, struggled with the defendant and was wounded in the leg when the gun discharged. The defendant testified that following the struggle with the wife’s mother, her father came toward him saying that he was “ ‘going to blow . . . [the defendant’s] head off,’ and come up with the gun and I shot him.”

The trial court instructed the jury to find the defendant not guilty if they should find the defendant committed the homicide in self-defense. The trial court also instructed the jury that they could find the defendant guilty of first degree murder, second degree murder or voluntary manslaughter. The defendant contends that, in addition, the trial court should have instructed the jury that they could find the defendant guilty of involuntary manslaughter.

Involuntary manslaughter is an accidental homicide, contrary to the intention of the parties, occurring during the performance of an unlawful, but not felonious, act or during the improper performance of a lawful act. Mundy v. Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244 (1926); Darnell v. Commonwealth, 6 Va. App. 485, 489, 370 S.E.2d 717, 719 (1988). Under certain circumstances, an accidental homicide occurring during an act of self-defense may constitute involuntary manslaughter. See Richardson v. Commonwealth, 128 Va. 691, 695, 104 S.E. 788, 790 (1920). For example, if the deceased is accidentally killed in a struggle as a result of falling and striking an object, or being struck by an overturned object, or the accidental discharge of a weapon during a struggle for its possession, an accused is entitled to an acquittal if acting in self-defense. Valentine v. Commonwealth, 187 Va. 946, 953, 48 S.E.2d 264, 268 (1948). If the accused was not acting in self-defense but had engaged in combat with the deceased without reasonably apprehending danger of being killed or of great bodily harm, he would, instead, be guilty of involuntary manslaughter for the accidental death of the victim.

Ordinarily, however, self-defense is not applicable to an accidental homicide even though there are instances where an accidental homicide may occur in conjunction with an act of self-defense. Id. Where, instead, a defendant’s testimony and the testimony of others support only a theory of self-defense, an instruction based on a theory of an accidental homicide is inappropriate. Annotation, Accused’s Right, in Homicide Case, to Have Jury Instructed as to Both Unintentional Shooting and Self-Defense, 15 A.L.R.4th 993 (1982).

A jury instruction, even though correctly stating the law, should not be given if it is not applicable to the facts in evidence. Hatcher v. Commonwealth, 218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978); King v. Commonwealth, 2 Va. App. 708, 711, 347 S.E.2d 530, 531 (1986). This principle applies as well to an instruction on involuntary manslaughter where the evidence presents only an issue of self-defense. See Bell v. Commonwealth, 167 Va. 526, 540, 189 S.E. 441, 448 (1937).

The evidence in this case did not support or present an issue of accidental homicide; it only presented an issue of self-defense. The defendant acknowledged that he deliberately shot the victim; he did not contend that he did so accidentally. He claimed that the victim came toward him with a gun and threatened him. The other witnesses testified that the victim did not have a gun. The jury had to decide whether the defendant reasonably feared that he was in danger of being killed or in danger of great bodily harm; no evidence was presented upon which the jury could find that the defendant had accidentally shot the victim. Therefore, the trial court correctly refused to instruct the jury that they could find the defendant guilty of involuntary manslaughter.

For these reasons, the judgment of conviction is affirmed.

Affirmed.

Coleman, J., concurred.