SHARP, Justice.
Defendant brings forward only assignments of error relating to the charge. Assignments Nos. 3 and 6 require discussion.
The portion of the charge which is the subject of Assignment No. 3 follows:
“Where a killing is shown to be intentional, and without legal provocation, and without just cause or excuse or where the killing is shown to be done with a deadly weapon, or in a cruel or in a brutal manner, then the law implies that it was done with malice. When it is established by the evidence that the defendant intentionally killed the deceased with a deadly weapon the law raises two and only two presumptions against him. First, that the killing was unlawful and second, that it was done with malice; an unlawful killing with malice is Murder in the Second Degree.
“When the intentional killing of a human being with a deadly weapon is established by the evidence, there is cast upon the defendant in this case, Earline Woods, the burden of proving to the satisfaction of the jury — not by the greater weight of the evidence, nor beyond a reasonable doubt, but simply to the satisfaction of the jury — the legal provocation that will rob the crime of malice and thus reduce it to manslaughter or that will excuse it altogether upon the grounds of self-defense, accident or misadventure.”
Following the excerpt quoted above the judge gave a further exposition of murder in the second degree, instructions upon voluntary and involuntary manslaughter, and a statement of the law of self-defense. Then, after a brief summary of the evidence, he delivered his final mandate. The substance of this instruction, which is the basis of Assignment No. 6, is summarized below:
If the State has satisfied you beyond a reasonable doubt that defendant, by means of a deadly weapon, intentionally inflicted the wound which produced Terry’s death it would be your duty to return a verdict of guilty of murder in the second degree unless defendant has satisfied you that she shot Terry in self-defense. If you are satisfied beyond a reasonable doubt that defendant intentionally shot Terry and that his death “was the natural and probable result,” but you are not satisfied be
yond a reasonable doubt that she shot him with malice, your verdict will be voluntary manslaughter unless defendant has satisfied you she shot Terry in self-defense. If you are not satisfied beyond a reasonable doubt that defendant shot Terry intentionally but are satisfied beyond a reasonable doubt that she shot him in the commission of some unlawful act and his death “was a natural and probable result,” your verdict will be guilty of involuntary manslaughter “even though the wounding of the deceased was unintentional,” unless defendant has satisfied you she shot in self-defense. Although the State may have satisfied you beyond a reasonable doubt that defendant shot and killed Terry, if she has satisfied you that she was not the aggressor and that she shot Terry under circumstances which created in her mind the reasonable belief that it was necessary to shoot him in order to save herself from death or great bodily harm, it would be your duty to return a verdict of not guilty. However, even if defendant has satisfied you she was not the aggressor and she shot Terry under circumstances which reasonably caused her to believe “that the shooting of the deceased was necessary in order to save herself from death or great bodily harm,” yet if she “fails to satisfy you that the forces used were not excessive under the circumstances, it would be your duty to return a verdit of guilty of involuntary manslaughter, or if you find the defendant was the aggressor then the plea of self-defense would not be available to her.”
Defendant asserts that the foregoing excerpts from the charge are fatally defective in the following respects: (1) The judge failed to instruct that until the State satisfied the jury beyond a reasonable doubt defendant intentionally shot Terry
and
thereby proximately caused his death, no presumption arose that the killing was either unlawful or done with malice. (2) Although the judge instructed the jurors under what circumstances they should return a verdict of guilty of murder in the second degree or manslaughter, and how murder in the second degree could be reduced to manslaughter, it was only in the event they found defendant to have acted in lawful self-defense that he specifically told them they could or should return a verdict of not guilty. These contentions must be sustained.
The State’s evidence tended to show that defendant intentionally shot Terry after having announced her intention to kill him and that he died as a result of the bullet wound she
inflicted. Defendant’s evidence (her testimony) tended to show that after scuffling with Terry over the rifle on the front porch of their residence she got possession of the weapon and went into the house; that Terry said he was going to take the rifle from her and, despite her warning to him not to come in, he started into the house; that, because he had previously shot her, she was afraid of him, and she “shot to miss him and hit him”; that her only purpose in shooting was to scare him. All the evidence, therefore, tends to show that defendant intentionally fired the shot which struck Terry. It must be kept in mind, however, that she made no judicial admission that he died as a result of the wound she inflicted.
The presumption that a homicide was unlawful and done with malice arises not only upon proof or admission of an intentional killing with a deadly weapon but also “when the defendant
intentionally assaults
another with a deadly weapon and thereby proximately causes the death of the person assaulted.”
State v. Gordon,
241 N.C. 356, 358, 85 S.E. 2d 322, 323, and cases cited;
State v. Mercer,
275 N.C. 108, 165 S.E. 2d 328;
State v. Propst,
274 N.C. 62, 161 S.E. 2d 560;
State v. Price,
271 N.C. 521, 157 S.E. 2d 127;
State v. Phillips,
264 N.C. 508, 142 S.E. 2d 337. However, no presumption arises against a defendant and no burden is cast upon him until the State has satisfied the jury beyond a reasonable doubt, or the defendant has judicially admitted, that he assaulted the deceased with a deadly weapon and thereby inflicted a wound which proximately caused his death. Here a specific instruction to this effect was not given.
Although defendant testified that she intentionally fired the rifle in Terry’s direction and that its discharge hit him, she did not admit that the wound thus inflicted caused his death. She was, therefore, entitled to the explicit instruction, even in the absence of a specific request therefor, that the jury should return a verdict of not guilty if the State failed to prove beyond a reasonable doubt that a bullet wound inflicted by defendant proximately caused Terry’s death. “The necessity for such instruction is not affected by the fact there was plenary evidence upon which the jury could base (such) a finding. ...”
State v. Ramey,
273 N.C. 325, 329, 160 S.E. 2d 56, 59;
State v. Howell,
218 N.C. 280, 10 S.E. 2d 815. In
State v. Redman,
217 N.C. 483, 486, 8 S.E.
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SHARP, Justice.
Defendant brings forward only assignments of error relating to the charge. Assignments Nos. 3 and 6 require discussion.
The portion of the charge which is the subject of Assignment No. 3 follows:
“Where a killing is shown to be intentional, and without legal provocation, and without just cause or excuse or where the killing is shown to be done with a deadly weapon, or in a cruel or in a brutal manner, then the law implies that it was done with malice. When it is established by the evidence that the defendant intentionally killed the deceased with a deadly weapon the law raises two and only two presumptions against him. First, that the killing was unlawful and second, that it was done with malice; an unlawful killing with malice is Murder in the Second Degree.
“When the intentional killing of a human being with a deadly weapon is established by the evidence, there is cast upon the defendant in this case, Earline Woods, the burden of proving to the satisfaction of the jury — not by the greater weight of the evidence, nor beyond a reasonable doubt, but simply to the satisfaction of the jury — the legal provocation that will rob the crime of malice and thus reduce it to manslaughter or that will excuse it altogether upon the grounds of self-defense, accident or misadventure.”
Following the excerpt quoted above the judge gave a further exposition of murder in the second degree, instructions upon voluntary and involuntary manslaughter, and a statement of the law of self-defense. Then, after a brief summary of the evidence, he delivered his final mandate. The substance of this instruction, which is the basis of Assignment No. 6, is summarized below:
If the State has satisfied you beyond a reasonable doubt that defendant, by means of a deadly weapon, intentionally inflicted the wound which produced Terry’s death it would be your duty to return a verdict of guilty of murder in the second degree unless defendant has satisfied you that she shot Terry in self-defense. If you are satisfied beyond a reasonable doubt that defendant intentionally shot Terry and that his death “was the natural and probable result,” but you are not satisfied be
yond a reasonable doubt that she shot him with malice, your verdict will be voluntary manslaughter unless defendant has satisfied you she shot Terry in self-defense. If you are not satisfied beyond a reasonable doubt that defendant shot Terry intentionally but are satisfied beyond a reasonable doubt that she shot him in the commission of some unlawful act and his death “was a natural and probable result,” your verdict will be guilty of involuntary manslaughter “even though the wounding of the deceased was unintentional,” unless defendant has satisfied you she shot in self-defense. Although the State may have satisfied you beyond a reasonable doubt that defendant shot and killed Terry, if she has satisfied you that she was not the aggressor and that she shot Terry under circumstances which created in her mind the reasonable belief that it was necessary to shoot him in order to save herself from death or great bodily harm, it would be your duty to return a verdict of not guilty. However, even if defendant has satisfied you she was not the aggressor and she shot Terry under circumstances which reasonably caused her to believe “that the shooting of the deceased was necessary in order to save herself from death or great bodily harm,” yet if she “fails to satisfy you that the forces used were not excessive under the circumstances, it would be your duty to return a verdit of guilty of involuntary manslaughter, or if you find the defendant was the aggressor then the plea of self-defense would not be available to her.”
Defendant asserts that the foregoing excerpts from the charge are fatally defective in the following respects: (1) The judge failed to instruct that until the State satisfied the jury beyond a reasonable doubt defendant intentionally shot Terry
and
thereby proximately caused his death, no presumption arose that the killing was either unlawful or done with malice. (2) Although the judge instructed the jurors under what circumstances they should return a verdict of guilty of murder in the second degree or manslaughter, and how murder in the second degree could be reduced to manslaughter, it was only in the event they found defendant to have acted in lawful self-defense that he specifically told them they could or should return a verdict of not guilty. These contentions must be sustained.
The State’s evidence tended to show that defendant intentionally shot Terry after having announced her intention to kill him and that he died as a result of the bullet wound she
inflicted. Defendant’s evidence (her testimony) tended to show that after scuffling with Terry over the rifle on the front porch of their residence she got possession of the weapon and went into the house; that Terry said he was going to take the rifle from her and, despite her warning to him not to come in, he started into the house; that, because he had previously shot her, she was afraid of him, and she “shot to miss him and hit him”; that her only purpose in shooting was to scare him. All the evidence, therefore, tends to show that defendant intentionally fired the shot which struck Terry. It must be kept in mind, however, that she made no judicial admission that he died as a result of the wound she inflicted.
The presumption that a homicide was unlawful and done with malice arises not only upon proof or admission of an intentional killing with a deadly weapon but also “when the defendant
intentionally assaults
another with a deadly weapon and thereby proximately causes the death of the person assaulted.”
State v. Gordon,
241 N.C. 356, 358, 85 S.E. 2d 322, 323, and cases cited;
State v. Mercer,
275 N.C. 108, 165 S.E. 2d 328;
State v. Propst,
274 N.C. 62, 161 S.E. 2d 560;
State v. Price,
271 N.C. 521, 157 S.E. 2d 127;
State v. Phillips,
264 N.C. 508, 142 S.E. 2d 337. However, no presumption arises against a defendant and no burden is cast upon him until the State has satisfied the jury beyond a reasonable doubt, or the defendant has judicially admitted, that he assaulted the deceased with a deadly weapon and thereby inflicted a wound which proximately caused his death. Here a specific instruction to this effect was not given.
Although defendant testified that she intentionally fired the rifle in Terry’s direction and that its discharge hit him, she did not admit that the wound thus inflicted caused his death. She was, therefore, entitled to the explicit instruction, even in the absence of a specific request therefor, that the jury should return a verdict of not guilty if the State failed to prove beyond a reasonable doubt that a bullet wound inflicted by defendant proximately caused Terry’s death. “The necessity for such instruction is not affected by the fact there was plenary evidence upon which the jury could base (such) a finding. ...”
State v. Ramey,
273 N.C. 325, 329, 160 S.E. 2d 56, 59;
State v. Howell,
218 N.C. 280, 10 S.E. 2d 815. In
State v. Redman,
217 N.C. 483, 486, 8 S.E. 2d 623, 625, Justice Barnhill (later Chief Justice)
said: “For the failure of the court... to require the jury to find beyond a reasonable doubt, upon the evidence offered, that the defendant killed the deceased with a deadly weapon, before casting any burden upon the defendant to go forward with proof tending to mitigate the killing or to excuse it altogether, there must be a new trial.”
Both the factual situation and the charge in this case are similar to those in
State v. Ramey, supra,
and defendant has apparently based her assignments of error upon the opinion in that case. In awarding a new trial in
Ramey,
Chief Justice Bobbitt said:
“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.
“. . . 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.”
State v. Ramey, supra
at 328, 329, 160 S.E. 2d at 58, 59.
Upon the authority of
State v. Ramey, supra,
and the cases cited therein, we award defendant a new trial for the errors indicated. However, we also deem it appropriate to call attention to certain additional errors in the charge.
In the mandate, the judge instructed the jurors to return a verdict of
involuntary
manslaughter in the event defendant satisfied them she shot Terry in the reasonable belief “that the shooting of the deceased was necessary in order to save herself from death or great bodily harm” but failed to satisfy them that the force she used was not excessive under the circumstances. Obviously this charge incorporates contradictions. If defendant had reasonable grounds to believe that it was necessary to shoot Terry to save herself from death or great bodily harm, she did not use excessive force in shooting him. Furthermore, when one who is fighting in self-defense uses excessive force he is guilty
of
voluntary
manslaughter.
State v. Ramey, supra; State v. Cooper,
273 N.C. 51, 159 S.E. 2d 305. There was in this case no evidence which would have justified a verdict of involuntary manslaughter.
In the second paragraph of the excerpt from the charge quoted at the beginning of this opinion, the judge instructed that once “the intentional killing of a human being with a deadly weapon” is established, it is encumbent upon the defendant to satisfy the jury of facts which would reduce the crime to manslaughter or excuse it altogether on the ground of self-defense,
accident or misadventure.
We have repeatedly held that accident or misadventure is in no sense an affirmative defense shifting the burden of proof to the defendant to exculpate himself from a charge of murder. On the contrary, it is merely a denial that the defendant has committed the crime, and the burden remains on the State to prove that the defendant
intentionally assaulted
the deceased with a deadly weapon and thereby proximately caused his death before any presumption arises against him.
State v. Moore,
275 N.C. 198, 166 S.E. 2d 652;
State v. Mercer, supra; State v. Fowler,
268 N.C. 430, 150 S.E. 2d 731;
State v. Phillips, supra.
Nothwithstanding, the phrase “accident or misadventure” lingers in the notebooks of trial judges and continues to haunt their charges with reference to the burden of proof which devolves upon a defendant to rebut the presumptions arising from a killing proximately resulting from the intentional use of a deadly weapon.
Defendant makes no contention that she discharged the rifle accidentally. Her contention is that she “aimed to miss”; that intending to shoot close enough to scare him but not to hit him, she shot him “accidentally.” However, defendant shot from a front room, or hall, through the front door toward Terry, who had started to come into the house from the porch. Under these circumstances the question of accident does not arise. At such close range and in such close quarters, if defendant intentionally fired the gun in Terry’s direction and thereby caused his death, she would be guilty of murder in the second degree unless she was entitled to shoot in self-defense.
State v. Price, supra; see State v. Freeman,
275 N.C. 662, 170 S.E. 2d 461;
State v. Cooper, supra.
In his mandate with reference to second-degree murder the judge correctly charged that the State must prove beyond a
reasonable doubt that defendant “intentionally inflicted with a deadly weapon
the wound which produced the death”
of Terry. Subsequently, however, in charging upon manslaughter he twice told the jury they must be satisfied beyond a reasonable doubt that Terry’s death “was the (a) natural and probable result” of a wound intentionally inflicted by defendant. The use of the phrase “natural and probable result” is disapproved. The crucial question is whether a wound inflicted by an unlawful assault
proximately caused
the death — not whether death was a natural and probable result of such a wound and should have been foreseen. Foreseeability is not an element of proximate cause in a homicide case where an intentionally inflicted wound caused the victim’s death.
New trial.