State v. Martin

HEDRICK, Judge.

The one assignment of error brought forward and discussed in defendant’s brief is set out in the record as follows: “For that the trial Court committed prejudicial and reversible error in failing to charge the jury upon the lesser offenses of mansalughter [sic] in its varying degrees, self-defense or accident.”

According to G.S. 1-180 the trial judge is required to “declare and explain the law arising on the evidence given in the case.” The statute comprehends instructions by the trial judge “on all substantial features of the case arising on the evidence without special request therefor. [Citations omitted.] And all defenses presented by defendant’s evidence are substantial features of the case. [Citations omitted.]” State v. Dooley, 285 N.C. 158, 163, 203 S.E. 2d 815, 818 (1974). Specifically, the rule is applicable to the defense of accident. State v. Moore, 26 N.C. App. 193, 215 S.E. 2d 171, cert. denied, 288 N.C. 249, 217 S.E. 2d 673 (1975); State v. Douglas, 16 N.C. App. 597, 192 S.E. 2d 643 (1972), cert. denied, 282 N.C. 583, 193 S.E. 2d 746 (1973).

The pertinent portion of defendant’s testimony on direct examination reads in the record as follows:

“[A]ll I could remember was the shotgun business. The lady, Ms. Barrett, had the shotgun pointed at me. I grabbed the shotgun by the barrel and when I grabbed the shotgun I twisted it around and the gun went off and when the gun went off, that is when the gun went off and I got up and tried to scuffle and take the shotgun from her.

“That at no time during the night had he been down the hallway towards the bathroom. That when the gun went off he was somewhere around the kitchen in the foyer.”

On cross-examination the defendant testified as follows:

“That when the gun went off, Sandra Barrett was standing directly in front of him. That Sandra Barrett had the gun and she pointed it at him. That while the gun was in Sandra Barrett’s hands he pulled the gun around and the scuffle began. That at the time Sandra Barrett had the gun she had both hands on it. That he did not know whether Sandra Barrett’s hands were on the trigger or not. That as Sandra Barrett came towards him with the gun he grabbed it and started wrestling with her over the gun. That the gun went off during the time they were wrestling with it. That after the gun went off, maybe a minute or two, the police came in. That the only thing he was doing was holding onto the gun during the time of the struggle, while Sandra Barrett was trying to snatch the gun away from him. That he is somewhat familiar with guns.

“That he did not know where Felicia Garner or Marion Garner were standing when the gun went off. That he can only recall one shot being fired.”

While the State’s evidence is in direct conflict with defendant’s evidence in many respects, and the State’s evidence raises no inference whatsoever of an accidental shooting, we must agree with the defendant that he was entitled to an instruction on the defense of accident. The defendant’s evidence tends to show that he was fighting with Sandra Barrett when the gun discharged and killed Felicia Garner. Clearly, this evidence was sufficient to raise an inference that the death of Felicia Garner was the result of an accidental shooting.

Since there must be a new trial we find it unnecessary to discuss other aspects of the one assignment of error brought forward and argued in the defendant’s brief.

New trial.

Judges Morris and Arnold concur.