State v. Canty

BALEY, Judge.

Defendant asserts as his sole assignment of error that the court in its charge did not adequately present his contention that he had drawn his pistol as a legitimate act of self-defense and that its accidental discharge did not constitute criminal negligence.

The record does not indicate any objection by defendant to the statement of his contentions nor was there any request to the court for correction. If there were any error, the defendant should have called such error to the attention of the court before the jury retired to consider its verdict. Failure to do so constitutes a waiver and is not reviewable on appeal. State v. Rankin, 284 N.C. 219, 200 S.E. 2d 182; State v. Thomas, 284 N.C. 212, 200 S.E. 2d 3.

We have, however, carefully examined the charge of the court. It was detailed and comprehensive upon the right of self-defense and the application of that right to the evidence in this case. The, contention of the defendant that the death of Ossie Hall Hayes was the result of an accident was fully presented to the jury. The right of the defendant to use his pistol in self-defense was made equally clear.

Involuntary manslaughter was defined by the court as “the unintentional killing of a human being by an unlawful act not amounting to a felony or an act done in a criminally negligent manner.” The conviction for involuntary manslaughter implies that the jury considered the killing to be unintentional and resulting from criminal negligence in the use of firearms. There could be no criminal negligence, as that term was defined by the court, had defendant been acting in self-defense.

We find no error in the instructions to the jury. Defendant has no just cause for complaint in the verdict.

No error.

Chief Judge Brock and Judge Parker concur.