#### STATE OF NORTH CAROLINA v. CYNTHIA P. BROOKS

No. 7927SC1164

(Filed 20 May 1980)

Homicide § 30.3— improper submission of involuntary manslaughter — prejudicial error

The trial court in a second degree murder case committed prejudicial error in submitting an issue of involuntary manslaughter to the jury where there was evidence of self-defense and no evidence of involuntary manslaughter.

Appeal by defendant from Thornburg, Judge. Judgment entered 19 July 1979 in Superior Court, GASTON County. Heard in the Court of Appeals 23 April 1980.

Defendant was tried for second degree murder. Some of the evidence tended to show that on 7 April 1979 the defendant and her husband had been separated for one week. On that day, he came to her home, placed his hand around her throat, released her, and then threatened her with a knife. He then went outside the house. He returned to the inside of the house and threatened her with the “stick end of the broom.” Defendant, at that time, shot her husband causing his death.

The court charged the jury it could find the defendant guilty of second degree murder, voluntary manslaughter, or involuntary manslaughter. From a sentence imposed upon a verdict of guilty of involuntary manslaughter, the defendant appealed.

Attorney General Edmisten, by Assistant Attorney General Archie W. Anders and Assistant Attorney General Thomas B. Wood, for the State.

Robert H. Forbes for defendant appellant.

WEBB, Judge.

The defendant assigns as error the submission to the jury of the charge of involuntary manslaughter. After the case sub judice *834was tried, our Supreme Court rendered a decision in State v. Ray, 299 N.C. 151, 261 S.E. 2d 789 (1980). As applicable to this case, Ray held that if there is evidence of self-defense and no evidence of involuntary manslaughter, it is prejudicial error to submit a charge of involuntary manslaughter in a trial for second degree murder. The evidence as to the shooting in the case sub-judice came from the testimony of defendant. She testified as follows:

> “When he picked up the broom I ran to my son’s room. The gun was kept right beside the door. I grabbed this gun up and turned around. I can’t remember; I was terribly upset. I was in fear of serious bodily injury. ... I grabbed the gun; I can’t remember if it was cocked. ... I don’t know where I shot him. I was upset and didn’t look. I ran. I don’t know how he was coming at me with the broom. . . . All I know is I was scared and didn’t mean to shoot him. . . .

> ... I don’t know how many steps he took. As soon as I shot, I guess I dropped the gun and ran. I don’t know how close he was.”

Defendant also testified:

> “I don’t recall firing the gun on this day. ... I didn’t mean to hurt or kill him; I just meant to scare him or something.”

We hold that the only conclusion that can be drawn from this testimony is that defendant pointed the gun at the deceased and shot him while he was advancing toward her. This could not be involuntary manslaughter. See State v. Ray, supra and State v. Wilkerson, 295 N.C. 559, 247 S.E. 2d 905 (1978).

The defendant has been acquitted of all degrees of homicide other than involuntary manslaughter. We have held there was not sufficient evidence of involuntary manslaughter to submit to the jury. The defendant must be discharged.

Reversed and remanded.

Judges MARTIN (Robert M.) and HILL concur.