State v. Putnam

Court of Appeals of North Carolina

State v. Putnam

211 S.E.2d 493, 24 N.C. App. 570, 1975 N.C. App. LEXIS 2435

CourtCourt of Appeals of North Carolina

DecidedFebruary 5, 1975

DocketNo. 7427SC868

StatusPublished

Cited by1 cases

This text of 211 S.E.2d 493 (State v. Putnam) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Putnam, 211 S.E.2d 493, 24 N.C. App. 570, 1975 N.C. App. LEXIS 2435 (N.C. Ct. App. 1975).

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Opinion

MARTIN, Judge.

“Where there is evidence of defendant’s guilt of a lesser degree of the crime charged in the indictment, the court must submit defendant’s guilt of the lesser included offense to the jury; if he fails to do so, the error is not cured by a verdict [572]*572convicting defendant of the offense charged.” State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969).

In the present case the trial court instructed the jury on second degree murder and death by accidental means. Defendant argues he was entitled to an instruction on voluntary and involuntary manslaughter.

The necessity for instructing the jury as to an included crime of lesser degree than that charged arises only when there is evidence from which the jury could find that such included crime of lesser degree was committed. State v. Reaves, 15 N.C. App. 476, 190 S.E. 2d, 358 (1972). The evidence in this case is very meager. There is evidence that defendant and McSwain had argued over some money but that it had ended twenty-five to thirty minutes prior to the shooting. It also appears that defendant was cashing in chips less than five minutes before the shooting. That is the extent of the evidence with regard to defendant’s emotional state. In our opinion there was no evidence from which the jury could find that defendant killed McSwain in the heat of passion or in self-defense by using excessive force. Thus, the absence of any instruction as to voluntary manslaughter was not error. See State v. Moore, supra.

However, we feel defendant was entitled to an instruction on involuntary manslaughter. One who handles a firearm in a reckless or wanton manner and thereby unintentionally causes the death of another is guilty of involuntary manslaughter. State v. Moore, supra. In this regard, there is some evidence that defendant was handling a firearm which he thought was unloaded in a reckless manner.

Failure to submit the issue of involuntary manslaughter to the jury entitles defendant to a new trial.

New trial.

Judges Vaughn and Arnold concur.

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MARTIN, Judge.

“Where there is evidence of defendant’s guilt of a lesser degree of the crime charged in the indictment, the court must submit defendant’s guilt of the lesser included offense to the jury; if he fails to do so, the error is not cured by a verdict [572]*572convicting defendant of the offense charged.” State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969).

In the present case the trial court instructed the jury on second degree murder and death by accidental means. Defendant argues he was entitled to an instruction on voluntary and involuntary manslaughter.

The necessity for instructing the jury as to an included crime of lesser degree than that charged arises only when there is evidence from which the jury could find that such included crime of lesser degree was committed. State v. Reaves, 15 N.C. App. 476, 190 S.E. 2d, 358 (1972). The evidence in this case is very meager. There is evidence that defendant and McSwain had argued over some money but that it had ended twenty-five to thirty minutes prior to the shooting. It also appears that defendant was cashing in chips less than five minutes before the shooting. That is the extent of the evidence with regard to defendant’s emotional state. In our opinion there was no evidence from which the jury could find that defendant killed McSwain in the heat of passion or in self-defense by using excessive force. Thus, the absence of any instruction as to voluntary manslaughter was not error. See State v. Moore, supra.

However, we feel defendant was entitled to an instruction on involuntary manslaughter. One who handles a firearm in a reckless or wanton manner and thereby unintentionally causes the death of another is guilty of involuntary manslaughter. State v. Moore, supra. In this regard, there is some evidence that defendant was handling a firearm which he thought was unloaded in a reckless manner.

Failure to submit the issue of involuntary manslaughter to the jury entitles defendant to a new trial.

New trial.

Judges Vaughn and Arnold concur.

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Bluebook (online)

211 S.E.2d 493, 24 N.C. App. 570, 1975 N.C. App. LEXIS 2435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-putnam-ncctapp-1975.

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