State v. Mercado

336 S.E.2d 87 (1985)

STATE of North Carolina
v.
Luis MERCADO.

No. 121PA85.

Supreme Court of North Carolina.

November 5, 1985.

Lacy H. Thornburg, Atty. Gen. by Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the state, appellant.

James R. Parish, Fayetteville, for defendant-appellee.

PER CURIAM.

We allowed the state's petition for discretionary review principally to consider whether the Court of Appeals erred in concluding that involuntary manslaughter was not a lesser included offense of murder. This question has now been addressed and answered in State v. Greene, ___ N.C. ___, 336 S.E.2d 87 (1985) (involuntary manslaughter is a lesser included offense of murder).

The Court of Appeals also held there was no evidence of involuntary manslaughter and had it not been submitted there was a reasonable likelihood defendant would have been acquitted altogether. Therefore, the submission of involuntary manslaughter was reversible error; and defendant, having been acquitted of all other degrees of homicide, was entitled to be discharged. We do not think this aspect of the Court of Appeals' opinion is deserving of further review.

The result is that the state's petition in the instant case may be considered improvidently allowed.

Discretionary review improvidently allowed.