State v. Spinks , 39 N.C. App. 340 ( 1979 )

ARNOLD, Judge.

The defendant assigns error to the judge’s charge on involuntary manslaughter, arguing that the effect of the charge was to direct the jury to find her guilty of involuntary manslaughter. After instructing the jury on second-degree murder, voluntary manslaughter, and self-defense, the judge charged:

If you do not find the defendant guilty of second degree murder or voluntary manslaughter, you would then consider whether or not she would be guilty of involuntary manslaughter.

Now, involuntary manslaughter is the unintentional killing of a human being by an unlawful act, not amounting to a felony, or by an act done in a criminally negligent way.

The defendant’s act was unlawful in the use of a deadly weapon.

The jury, after some deliberation, returned to the courtroom to ask the. judge for “a further definition of two of the verdicts.” The judge again instructed them on all four possible verdicts, concluding with regard to involuntary manslaughter: “the State must prove . . . beyond a reasonable doubt . . . that the defendant acted unlawfully or in a criminally negligent way in this shooting. I described to you that the use of a gun in this manner would be an unlawful act. .-. .”

The judge correctly charged the jury on the elements of involuntary manslaughter. Involuntary manslaughter is the unintentional killing of another by (1) an unlawful act not amounting to a felony or (2) a lawful act done in a culpably negligent manner. 6 Strong’s N.C. Index 3d, Homicide § 6.1. We are concerned with the jury charge in this case only as it relates to the first alternative, that is, an unintentional killing resulting from an unlawful act. The State argues that the charge was proper, since G.S. 14-34 makes pointing a gun at any person an unlawful act. However, our courts have long recognized that the strict language of the statute is subject to the qualification that an intentional pointing of a gun violates the statute only if it is done without legal justification. Lowe v. Dept. of Motor Vehicles, 244 N.C. 353, 93 S.E. 2d 448 (1956); State v. Stitt, 146 N.C. 643, 61 S.E. 566 (1908). In this case, then, if the jury found that the defendant acted in self-defense they could not have found her guilty of involuntary manslaughter under the first alternative. The effect of the judge’s instruction that “[t]he defendant’s act was unlawful” tended to take from the jury the opportunity to decide whether defendant’s pointing of the gun was justified. This is prejudicial error. A number of cases have held peremptory instructions in criminal cases improper, e.g. State v. Godwin, 227 N.C. 449, 42 S.E. 2d 617 (1947); State v. Lawson, 209 N.C. 59, 182 S.E. 692 (1935), and while the instructions in those cases were more overtly peremptory than the one here, we find that the effect is the same.

The State argues that State v. Walker, 34 N.C. App. 485, 238 S.E. 2d 666 (1977), cert. den. 294 N.C. 445, 241 S.E. 2d 847 (1978), should control our decision here. In that case the trial court had instructed the jury:

If you do not find the defendant guilty of second degree murder or voluntary manslaughter but the state has proven beyond a reasonable doubt that he did not act in self-defense, then you must determine whether the defendant is guilty of involuntary manslaughter.

and this Court said:

The jury, when it considered the crime of involuntary manslaughter, had rejected self-defense. Since defendant was not acting in self-defense, he was acting unlawfully in pointing the gun close to Shores and firing it for the purpose of scaring him, as his testimony tends to show.

Id. at 487, 238 S.E. 2d at 667.

While the court, in the case sub judice, did instruct the jury that a killing would be excused on the ground of self-defense we cannot say that the jury had already rejected self-defense at the time it considered involuntary manslaughter. It appears that the subsequent instruction that “the use of the gun in this manner would be an unlawful act” negated self-defense, especially as it related to whether the shooting was an unlawful act upon which to find defendant guilty of involuntary manslaughter.

It is not necessary to discuss the remaining assignments of error since they are unlikely to recur at a new trial, which must be granted for error in instructing the jury that “the defendant’s act was unlawful.”

New trial.

Judges VAUGHN and MARTIN (Robert M.) concur.