Bobbitt, J.
All assignments of error brought forward in defendant’s brief relate to the charge.
At the outset of the charge, the court explained defendant was presumed to be innocent and that the burden rested upon the State to satisfy the jury beyond a reasonable doubt as to defendant’s guilt before they could convict him.
After general instructions and a review of the evidence of the State and of defendant, instructions were given as to the elements of second degree murder and of manslaughter.
The court then charged the jury in substance that the intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions (1) that the killing was unlawful, and (2) that it was done with malice, and that an unlawful killing with malice is murder in the second degree.
State v. Gordon,
241 N.C. 356, 85 S.E. 2d 322;
State v. Phillips,
264 N.C. 508, 142 S.E. 2d 337;
State v. Cooper,
273 N.C. 51, 159 S.E. 2d 305. The court charged further that,
in such event,
it would be incumbent upon defendant to satisfy the jury of facts sufficient to mitigate the killing and reduce it to manslaughter or to excuse it altogether on the ground of self-defense. These instructions with reference to manslaughter and self-defense presuppose the State has satisfied the jury from the evidence beyond a reasonable doubt that defendant intentionally shot Mabry
and
thereby proximately caused his death. If the State failed to establish either of these two propositions, no presumptions would arise as to an unlawful killing with malice. No instruction to this effect was given.
After giving instructions relating to second degree murder, the court instructed the jury if they found defendant not guilty of second degree murder it would be their duty to determine whether he was guilty of manslaughter. The court’s final instruction to the jury is quoted below.
“(I)f you find from the evidence beyond a reasonable doubt, the
burden being upon the State to so satisfy you, that on the 28th day of May, 1967, Dillard Pink Ramey intentionally shot and killed the deceased, Mr. Ardell Mabry; that he killed him with a deadly weapon, and you are further satisfied from all the evidence, both that of the State and the defendant, that he killed Mr. Mabry in the heat of passion by reason of anger suddenly aroused on account of an assault or threatened assault upon him or his family, and before sufficient time had elapsed for the passion to subside and reason to resume its habitual control, then the defendant would be guilty of manslaughter, and if you so find, it would be your duty to render a verdict of guilty of manslaughter against the defendant,
unless the prisoner has satisfied, you that he killed the deceased
in self-defense or in defense of his family, that is to say, if he has satisfied you from the evidence in the case that at the time he shot
and killed
the deceased, Mr. Ardell Mabry, he was in his owTn home, that he was himself without fault in bringing on the difficulty; that he was assaulted by the deceased; that he believed and had reasonable grounds to believe that he was about to suffer death or great bodily harm or that some member of his family was about to suffer death or great bodily harm at the hands of the deceased, and that in the exercise of ordinary prudence and firmness he used no more force than he believed to be reasonably necessary to repel and overcome the assault which the deceased was making upon him or upon some member of his family at the time
the fatal shot
was fired, then I charge you that
the killing
of the deceased Ardell Mabry would be excusable homicide and if you so find to your satisfaction, it would be your duty to render
a verdict of not guilty in this case.”
(Our italics.)
The only portions of the charge in which the jury was instructed as to circumstances under which they might return a verdict of not guilty relate directly and solely to the return of a verdict of not guilty in the event the jury found defendant acted in the lawful exercise of his right of self-defense.
A plea of not guilty puts in issue
every essential element of the crime charged. State v. McLamb,
235 N.C. 251, 256, 69 S.E. 2d 537, 540, and cases cited;
State v. Courtney,
248 N.C. 447, 451, 103 S.E. 2d 861, 864;
State v. Moore,
268 N.C. 124, 126, 150 S.E. 2d 47, 49.
The italicized statements in the quoted excerpt from the charge indicate defendant contended he
killed
Mabry in self-defense. Defendant’s contention was that he
acted
in defense of himself and of members of his family who were on his porch when Mabry fired his shotgun towards them.
Nothing in the record suggests that defendant’s plea of’not guilty was withdrawn or modified. There was no judicial admission by de
fendant or by his counsel that Mabry’s death was proximately caused by a bullet wound inflicted by defendant. Although he testified he fired his .22 rifle once under circumstances referred to in our preliminary statement, defendant made no admission or statement that he
killed
Mabry. Whether Mabry’s death was caused by a bullet wound inflicted by defendant was not within the knowledge of defendant. Mabry was alive when he left or was taken from defendant’s view.
The factual situation is quite similar to that considered in
State v. Redman,
217 N.C. 483, 485, 8 S.E. 2d 623, 624, where Barnhill, J. (later C.J.), speaking for this Court, said.
“Non constat
it is admitted that the defendant shot the deceased, it does not follow of necessity that he inflicted a fatal wound. The burden of so showing rested upon and remained with the State throughout the trial.” Accord:
State v. Howell,
218 N.C. 280, 10 S.E. 2d 815;
State v. Anderson,
222 N.C. 148, 22 S.E. 2d 271;
State v. DeGraffenreid,
223 N.C. 461, 27 S.E. 2d 130;
State v. Ellison,
226 N.C. 628, 39 S.E. 2d 824;
State v. Minton,
228 N.C. 15, 44 S.E. 2d 346.
Quoting further from the opinion in
State v. Redman, supra:
“At no time was the jury instructed that the State was required to show that the deceased came to his death as a proximate result of the pistol shot wound inflicted by the defendant. The existence of this fact was assumed.” As stated by Devin, J. (later C.J.), in
State v. Ellison, supra:
“In the absence of an admission to that effect the burden of proof was upon the State to show from the evidence beyond a reasonable doubt that the shots admittedly fired by defendant caused the death of the deceased.”
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Bobbitt, J.
All assignments of error brought forward in defendant’s brief relate to the charge.
At the outset of the charge, the court explained defendant was presumed to be innocent and that the burden rested upon the State to satisfy the jury beyond a reasonable doubt as to defendant’s guilt before they could convict him.
After general instructions and a review of the evidence of the State and of defendant, instructions were given as to the elements of second degree murder and of manslaughter.
The court then charged the jury in substance that the intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions (1) that the killing was unlawful, and (2) that it was done with malice, and that an unlawful killing with malice is murder in the second degree.
State v. Gordon,
241 N.C. 356, 85 S.E. 2d 322;
State v. Phillips,
264 N.C. 508, 142 S.E. 2d 337;
State v. Cooper,
273 N.C. 51, 159 S.E. 2d 305. The court charged further that,
in such event,
it would be incumbent upon defendant to satisfy the jury of facts sufficient to mitigate the killing and reduce it to manslaughter or to excuse it altogether on the ground of self-defense. These instructions with reference to manslaughter and self-defense presuppose the State has satisfied the jury from the evidence beyond a reasonable doubt that defendant intentionally shot Mabry
and
thereby proximately caused his death. If the State failed to establish either of these two propositions, no presumptions would arise as to an unlawful killing with malice. No instruction to this effect was given.
After giving instructions relating to second degree murder, the court instructed the jury if they found defendant not guilty of second degree murder it would be their duty to determine whether he was guilty of manslaughter. The court’s final instruction to the jury is quoted below.
“(I)f you find from the evidence beyond a reasonable doubt, the
burden being upon the State to so satisfy you, that on the 28th day of May, 1967, Dillard Pink Ramey intentionally shot and killed the deceased, Mr. Ardell Mabry; that he killed him with a deadly weapon, and you are further satisfied from all the evidence, both that of the State and the defendant, that he killed Mr. Mabry in the heat of passion by reason of anger suddenly aroused on account of an assault or threatened assault upon him or his family, and before sufficient time had elapsed for the passion to subside and reason to resume its habitual control, then the defendant would be guilty of manslaughter, and if you so find, it would be your duty to render a verdict of guilty of manslaughter against the defendant,
unless the prisoner has satisfied, you that he killed the deceased
in self-defense or in defense of his family, that is to say, if he has satisfied you from the evidence in the case that at the time he shot
and killed
the deceased, Mr. Ardell Mabry, he was in his owTn home, that he was himself without fault in bringing on the difficulty; that he was assaulted by the deceased; that he believed and had reasonable grounds to believe that he was about to suffer death or great bodily harm or that some member of his family was about to suffer death or great bodily harm at the hands of the deceased, and that in the exercise of ordinary prudence and firmness he used no more force than he believed to be reasonably necessary to repel and overcome the assault which the deceased was making upon him or upon some member of his family at the time
the fatal shot
was fired, then I charge you that
the killing
of the deceased Ardell Mabry would be excusable homicide and if you so find to your satisfaction, it would be your duty to render
a verdict of not guilty in this case.”
(Our italics.)
The only portions of the charge in which the jury was instructed as to circumstances under which they might return a verdict of not guilty relate directly and solely to the return of a verdict of not guilty in the event the jury found defendant acted in the lawful exercise of his right of self-defense.
A plea of not guilty puts in issue
every essential element of the crime charged. State v. McLamb,
235 N.C. 251, 256, 69 S.E. 2d 537, 540, and cases cited;
State v. Courtney,
248 N.C. 447, 451, 103 S.E. 2d 861, 864;
State v. Moore,
268 N.C. 124, 126, 150 S.E. 2d 47, 49.
The italicized statements in the quoted excerpt from the charge indicate defendant contended he
killed
Mabry in self-defense. Defendant’s contention was that he
acted
in defense of himself and of members of his family who were on his porch when Mabry fired his shotgun towards them.
Nothing in the record suggests that defendant’s plea of’not guilty was withdrawn or modified. There was no judicial admission by de
fendant or by his counsel that Mabry’s death was proximately caused by a bullet wound inflicted by defendant. Although he testified he fired his .22 rifle once under circumstances referred to in our preliminary statement, defendant made no admission or statement that he
killed
Mabry. Whether Mabry’s death was caused by a bullet wound inflicted by defendant was not within the knowledge of defendant. Mabry was alive when he left or was taken from defendant’s view.
The factual situation is quite similar to that considered in
State v. Redman,
217 N.C. 483, 485, 8 S.E. 2d 623, 624, where Barnhill, J. (later C.J.), speaking for this Court, said.
“Non constat
it is admitted that the defendant shot the deceased, it does not follow of necessity that he inflicted a fatal wound. The burden of so showing rested upon and remained with the State throughout the trial.” Accord:
State v. Howell,
218 N.C. 280, 10 S.E. 2d 815;
State v. Anderson,
222 N.C. 148, 22 S.E. 2d 271;
State v. DeGraffenreid,
223 N.C. 461, 27 S.E. 2d 130;
State v. Ellison,
226 N.C. 628, 39 S.E. 2d 824;
State v. Minton,
228 N.C. 15, 44 S.E. 2d 346.
Quoting further from the opinion in
State v. Redman, supra:
“At no time was the jury instructed that the State was required to show that the deceased came to his death as a proximate result of the pistol shot wound inflicted by the defendant. The existence of this fact was assumed.” As stated by Devin, J. (later C.J.), in
State v. Ellison, supra:
“In the absence of an admission to that effect the burden of proof was upon the State to show from the evidence beyond a reasonable doubt that the shots admittedly fired by defendant caused the death of the deceased.”
In our opinion, and we so decide, defendant was entitled to an explicit instruction, even in the absence of a specific request therefor, to the effect the jury should return a verdict of not guilty if the State failed to satisfy them from the evidence beyond a reasonable doubt that a bullet wound inflicted upon Mabry by defendant proximately caused his death. The trial judge inadvertently failed to give such instruction. The necessity for such instruction is not affected by the fact there was plenary evidence upon which the jury could base a finding that a bullet wound inflicted upon Mabry by defendant proximately caused his death.
State v. Redman, supra.
As indicated, the quoted excerpt from the charge was the court’s final instruction to the jury. It is noted that no instruction was given that if the State failed to satisfy the jury from the evidence beyond a reasonable doubt that defendant was guilty of murder in the second degree, and failed to satisfy the jury from the evidence beyond a reasonable doubt that defendant was guilty of manslaughter, the jury should return a verdict of not guilty.
Expressions in
State v. Cole,
270
N.C. 382,
154 S.E. 2d 506, inconsistent with the legal principles stated herein, are withdrawn and may not be considered authoritative.
A new trial is awarded on account of the indicated error (deficiency) in the charge. Hence, it is unnecessary to consider assignments challenging the charge as erroneous in other respects.
This Court,
ex mero motu,
deems it appropriate to call attention to an error in the quoted excerpt from the charge. The trial judge instructed the jury in substance to return a verdict of guilty of manslaughter if they found defendant unlawfully killed Mabry in the heat of passion
unless
the jury found defendant acted in the lawful exercise of his right of self-defense in which case they would return a verdict of not guilty. An unlawful killing in the heat of passion is not excusable on the ground of self-defense. Conversely, a person acting in the lawful exercise of his right of self-defense is not guilty of any criminal offense. However, a person is guilty of manslaughter if he kills his adversary when acting to defend himself but in doing so uses more force than is or reasonably appears to be necessary to protect and defend himself from death or great bodily harm.
New trial.