State v. Best

229 S.E.2d 202, 31 N.C. App. 389, 1976 N.C. App. LEXIS 2009

Opinion

CLARK, Judge.

Defendant assigns as error the failure of the trial court to charge the jury on the law of shooting by accident or misadventure. Defendant did not request such an instruction.

The trial judge has a duty to “declare and explain the law arising on the evidence given in the case.” G.S. 1-180. Every substantial feature of the case arising on the evidence must be presented to the jury even without a special request for instructions on the issue. State v. Dooley, 285 N.C. 158, 203 S.E. 2d 815 (1974). In a case where the evidence offered by one party tends to show accident, it is not enough for the trial judge to charge that the State must prove intent beyond a reasonable doubt. The judge must also clearly explain that accident is the antithesis of intent. This was not done here. Two recent opinions by this Court have made clear this duty with respect to the law of accident in appropriate cases, and we see no reason to elaborate on their wisdom. State v. Wright, 28 N.C. App. 481, 221 S.E. 2d 745 (1976) ; State v. Moore, 26 N.C. App. 193, 215 S.E. 2d 171 (1975).

We order a

New trial.

Judges Morris and Arnold concur.