State v. Jackson

MITCHELL, Judge.

The sole question presented by the defendant is whether the court erred in its instruction to the jury regarding the law of accidental homicide and in its final mandate to the jury which did not specifically mention accidental homicide.

Defendant first contends that the court’s definition of accident was so condensed that it was probably overlooked by the jury since the other “possible crimes involved were defined at great length as was the defense of self-defense.” Defendant further argues that “[t]he court’s reference to accident was such that a juror hearing the charge would hardly realize that an accident would excuse the defendant.” We do not agree.

The language used by the trial court in the case sub judice is as follows:

Now, members of the jury, I will give to you the law of accident, which is very simple. If Lordman died by accident or misadventure, that is, without wrongful purpose of criminal negligence on the part of the defendant, the defendant would not be guilty. The burden of proving accident is not on the defendant. His assertion of accident is merely a denial that he has committed any crime. The burden remains on the State to prove the defendant’s guilt beyond a reasonable doubt.

This Court has recently approved an instruction on accidental homicide virtually identical to that used here by the trial court. State v. Collins, 29 N.C. App. 478, 224 S.E. 2d 647 (1976); accord, State v. McLamb, 20 N.C. App. 164, 200 S.E. 2d 838 (1973). We find this to be a proper statement of the law and, therefore, sufficient and not misleading.

Defendant next contends that when the trial judge applied the law to the facts no mention was made of accident. He argues that accident was his main defense to the charges against him and that the omission was a matter of law and, therefore, unaffected by trial counsel’s failure to object and request further instructions. We do not agree.

The contention of a defendant charged with homicide that a killing was accidental is not an affirmative defense, but rather a denial of guilt by denying the element of intent. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969); 6 Strong, N.C. Index 3d, Homicide, § 11, p. 549 and cases cited therein. All portions of a trial court’s charge to the jury must be construed contextually. State v. Utley, 223 N.C. 39, 25 S.E. 2d 195 (1943). 1 Strong, N.C. Index 3d, Appeal and Error, § 50, p. 317. Upon a defendant’s assertion that a killing was an accident, the denial of guilt applies to all the charges against the defendant regarding the transaction in question. State v. McLamb, 20 N.C. App. 164, 200 S.E. 2d 838 (1973). Therefore, we think and so hold that a sufficient charge was made by the trial court in its final mandate as to first-degree murder, all lesser included offenses, and to self-defense. It admonished the jury that if a reasonable doubt existed as to one or more of the elements a not guilty verdict would be required. We think that this admonition was a sufficient application of the law to the facts here in regard to accident and that the jury was not misled thereby. The trial court clearly put the burden upon the State to prove there was no accidental killing. We also point out that the trial court specifically asked counsel for the defendant if he requested any further instructions to which he replied in the negative.

For the reasons stated, we find

No error.

Judges Morris and Clark concur.