State v. Graves

221 S.E.2d 711, 28 N.C. App. 500, 1976 N.C. App. LEXIS 2743

Opinion

ARNOLD, Judge.

Defendant assigns as error the failure of the court to instruct the jury on involuntary manslaughter as a possible verdict. He contends that the evidence raised the offense of involuntary manslaughter. There is merit in this contention.

Involuntary manslaughter has been defined as “the unlawful killing . . . without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury.” See State v. Wrenn, 279 N.C. 676, 682, 185 S.E. 2d 129 (1971). Defendant's testimony is explicit that he did not intentionally shoot anyone, and in fact did not know that his gun had even fired. There is evidence in this case to support the theory that after defendant was shot his shotgun discharged accidentally. Evidence is sufficient to support a verdict of involuntary manslaughter. State v. Stimpson, 279 N.C. 716, 185 S.E. 2d 168 (1971) ; State v. Davis, 15 N.C. App. 395, 190 S.E. 2d 434 (1972).

Although not raised by this appeal the evidence, as contained in this record, presents the question of whether there should have been an instruction to the jury concerning a possible verdict of not guilty if the jury believed the defendant to have been completely unconscious at the time of the shooting. See State v. Caddell, 287 N.C. 266, 215 S.E. 2d 348 (1975); and State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969);

Since defendant is entitled to a new trial there is no need to discuss the remaining assignments of error.

New trial.

Chief Judge Brock and Judge Parker concur.