State v. Harrington

210 S.E.2d 424 (1974)

286 N.C. 327

STATE of North Carolina v. James Bobby HARRINGTON.

No. 124.

Supreme Court of North Carolina.

December 30, 1974.

*427 Atty. Gen. James H. Carson, Jr., and Asst. Attys. Gen. James E. Magner, Jr. and Claude W. Harris, Raleigh, for the State.

Philip A. Baddour, Jr., Goldsboro, for defendant.

BOBBITT, Chief Justice.

The only question is whether there was evidence sufficient to require submission of guilty of involuntary manslaughter as a permissible verdict. The answer is provided by application of the well settled legal principles stated below.

"The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954); State v. Foster, 284 N.C. 259, 277, 200 S.E.2d 782, 795 (1973).

The jurors were instructed to return a verdict of not guilty if the State failed to satisfy them from the evidence and beyond a reasonable doubt that defendant intentionally shot Willie Mae Evans and thereby proximately caused her death. Nothing in the State's evidence afforded a basis for submitting involuntary manslaughter as a permissible verdict. Our inquiry is whether defendant's testimony provided a sufficient basis therefor.

Assuming, as defendant testified, the first bullet resulted from an accidental discharge of the rifle, defendant would be guilty of involuntary manslaughter only if there were evidence tending to show that such unintentional killing was caused by defendant's unjustified and wanton or reckless use of the rifle in such manner as to jeopardize Willie Mae's safety. State v. Griffin, 273 N.C. 333, 335, 159 S.E.2d 889, 890-891 (1968); State v. Moore, 275 N.C. 198, 212, 166 S.E.2d 652, 661-662 (1969); State v. Wrenn, 279 N.C. 676, 683, 185 S.E.2d 129, 133 (1971).

Defendant's testimony was to this effect: He started out the back door to engage in target practice. A person in his trailer-home called to him. He turned and went back to find out what the caller wanted. In doing so, he stumbled over a chair in his trailer-home. This caused the accidental discharge of the first (lethal) bullet. This testimony tends to negate culpable negligence in defendant's handling of the rifle.

Defendant cites Moore and Wrenn in support of his contention. Suffice to say, the facts in evidence in each of these cases are quite different from the evidential facts in the present case.

Defendant's testimony being insufficient to provide a basis for submission of involuntary manslaughter as a permissible verdict, the decision of the Court of Appeals is affirmed.

Affirmed.