State v. Reives, 222 S.E.2d 727 (NC Ct. App. 1976)


No. 7511SC854


29 N.C. App. 11; 222 S.E.2d 727; 1976 N.C. App. LEXIS 2364

February 13, 1976, Heard in the Court of Appeals
March 17, 1976, Filed

Attorney General Edmisten by Associate Attorney Jesse Brake for the State.
J. W. Hoyle for defendant appellant.

Clark, Judge. Judges Morris and Vaughn concur.



Defendant’s motion for judgment of nonsuit on the charge of assault with a deadly weapon with intent to kill was properly overruled. There was sufficient evidence to support the verdict of guilty of assault with a deadly weapon with intent to kill. [A pistol is a deadly weapon per se. State v. Powell, 238 N.C. 527, 78 S.E. 2d 248 (1953). An unexplained misfiring of a loaded pistol does not change its deadly character. If the pistol used is a deadly weapon and is pointed at the person of another, then such pointing is an assault with a deadly weapon. G.S. 14-34; State v. Currie, 7 N.C. App. 439, 173 S.E. 2d 49 (1970). The altercation, the shooting and resulting death of Ross soon after defendant pointed the pistol at Fox’s chest and pulled the trigger, and other circumstances are sufficient evidence of intent to kill. “An intent to kill ‘may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.'” State v. Cauley, 244 N.C. 701, 708, 94 S.E. 2d 915, 921 (1956). See 1 Strong, N. C. Index 2d, Assault and Battery, ß 5, p. 98.

Defendant contends that his evidence discloses the defense of accidental shooting to the homicide charge, but that the court did not instruct the jury as to the legal principles of accident and misadventure. It appears from the record that the trial court instructed the jury that defendant contended that the shooting was accidental in that he did not pull the trigger and that the State must prove beyond a reasonable doubt an intentional shooting. Further, the court charged as follows: “Now, where death is the result of an accident or misadventure there is no criminal liability. Where it appears that the killing was unintentional, that the defendant acted with no wrongful purpose and that it was not the result of culpable negligence then the homicide would be excused.”

We find these instructions properly apply the defense of accident, and that it is not error if the court does not define the word “accident.” We find most definitions of “accident” serve only to confuse, if not mislead. See 1 C.J.S., Accident, p. 425, n. 20. The word has a commonly known meaning, and it is generally understood that an act could not be both “intentional” and “accidental.” In State v. Williams, 235 N.C. 752, 71 S.E. 2d 138 (1952), it was held that where the court charged that the State must prove an intentional shooting, together with a statement of defendant’s contentions that he did not intentionally kill, the instructions on accidental death were sufficient in the absence of a request for specific instructions. Though Williams, supra, has not been overruled, it is certainly desirable that the trial court, as it did in the case before us, further apply the legal principles by instructing that accident was a defense to the crime of murder or voluntary manslaughter. See State v. Wingler, 238 N.C. 485, 78 S.E. 2d 303 (1953), and State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969).
We have carefully examined all other assignments of error, and we find that defendant had a fair trial, free from prejudicial error.
No error.

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