State v. Honeycutt , 250 N.C. 229 ( 1959 )

108 S.E.2d 485 (1959) 250 N.C. 229

STATE
v.
Tillman Lavon HONEYCUTT.

No. 505.

Supreme Court of North Carolina.

April 29, 1959.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Harry W. McGalliard, for the State.

Robert M. Davis, George R. Uzzell, Salisbury, for defendant.

DENNY, Justice.

The defendant's sole assignment of error is to the refusal of the court below to sustain his motion for judgment as of nonsuit at the close of all the evidence.

There is no evidence on this record that tends to show the defendant intentionally pointed the gun in the direction of the deceased, as was the case in State v. Head, 214 N.C. 700, 200 S.E. 415.

In the case of State v. Satterfield, 198 N.C. 682, 153 S.E. 155, 156, in speaking of involuntary manslaughter, this Court said: "This offense consists in the unintentional killing of one person by another without malice (1) by doing some unlawful act not amounting to a felony or naturally dangerous to human life; or (2) by negligently doing some act which in itself is lawful; or (3) by negligently failing or omitting to perform a duty imposed by law. These elements are embraced in the offense as defined at common law. Wharton, Homicide, 7; 1 Crim.Law (11 ed.), 622; 1 McClain on Crim.Law, 303, § 335; Clark's Crim.Law, 204. The definition includes unintentional homicide resulting from the performance of an unlawful act, from the performance of a lawful act done in a culpably negligent way, and from the negligent omission to perform a legal duty."

In our opinion, the evidence adduced in the trial below tends to show an accidental shooting; there is no evidence that the gun was intentionally discharged or that it was handled so recklessly as to constitute culpable negligence. State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Watts, 224 N.C. 771, 32 S.E.2d 348; State v. Robinson, 229 N.C. 647, 50 S.E.2d 740; State v. Tolbert, 240 N.C. 445, 82 S.E.2d 201; State v. Becker, 241 N.C. 321, 85 S.E.2d 327; State v. Hancock, 248 N.C. 432, 103 S.E.2d 491.

The defendant is entitled to his discharge, and to that end the judgment below is

Reversed.