State v. Higgs

256 S.E.2d 824, 42 N.C. App. 501, 1979 N.C. App. LEXIS 2782

Opinion

WEBB, Judge.

We reverse the superior court for failing to submit to the jury the charge of voluntary manslaughter. A defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. 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 crime of lesser degree was committed. The presence of such evidence is the determinative factor. See State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149 (1971); State v. Carnes, 279 N.C. 549, 184 S.E. 2d 235 (1971), and 4 Strong, N.C. Index 3d, Criminal Law, § 115, p. 610 and cases cited therein. In this case the State’s evidence was in part circumstantial. There was evidence that defendant said he had shot deceased. From this the jury could infer that he had intentionally shot deceased with malice. The jury did not have to make this inference however. State v. Hodges, 296 N.C. 66, 249 S.E. 2d 371 (1978). The jury could infer that defendant intentionally shot Jack Cates which proximately caused his death, but they would not have to infer it was done with malice. This would be voluntary manslaughter. State v. Rummage, 280 N.C. 51, 185 S.E. 2d 221 (1971). There being evidence from which the jury could have found the defendant guilty of voluntary manslaughter, it was error not to submit this charge to the jury.

New trial.

Judges MARTIN (Robert M.) and MITCHELL concur.