{ "id": 8519914, "name": "STATE OF NORTH CAROLINA v. LOWELL EDSELL SHEPARD", "name_abbreviation": "State v. Shepard", "decision_date": "1983-03-01", "docket_number": "No. 825SC841", "first_page": "159", "last_page": "162", "citations": [ { "type": "official", "cite": "61 N.C. App. 159" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "230 S.E. 2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "591-92" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552002 ], "year": 1976, "pin_cites": [ { "page": "677-78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0673-01" ] }, { "cite": "185 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "280 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569769 ], "year": 1971, "pin_cites": [ { "page": "54-55" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0051-01" ] }, { "cite": "275 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644481 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0144-01" ] }, { "cite": "299 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563233, 8563343, 8563256, 8563325, 8563198 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0470-02", "/nc/307/0470-05", "/nc/307/0470-03", "/nc/307/0470-04", "/nc/307/0470-01" ] }, { "cite": "283 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "903" }, { "page": "904" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524820 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "674" }, { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0672-01" ] }, { "cite": "266 S.E. 2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 833", "category": "reporters:state", "reporter": "N.C. App.", "year": 1980, "opinion_index": 0 }, { "cite": "261 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "794", "parenthetical": "emphasis added" }, { "page": "792-93" } ], "opinion_index": 0 }, { "cite": "299 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574152 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "158" }, { "page": "154-56" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0151-01" ] } ], "analysis": { "cardinality": 394, "char_count": 7542, "ocr_confidence": 0.802, "pagerank": { "raw": 2.1618190013584228e-07, "percentile": 0.7699948915940659 }, "sha256": "96f368eb70b20439c98b0af2dcf9794bd06c10cd082c2fd2e1829d7bae86c563", "simhash": "1:c7a9f5ce66b78ccc", "word_count": 1229 }, "last_updated": "2023-07-14T21:13:54.976609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Hill concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LOWELL EDSELL SHEPARD" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendant contends the court erred in denying his motion to dismiss for insufficiency of the evidence. The State\u2019s evidence tended to show the following:\nDecedent died from a gunshot wound in the right temple. Several witnesses observed a pistol lying between his feet. A police officer testified that the pistol was loaded but uncocked.\nSeveral witnesses heard a shot from the area where decedent died, though none observed the shooting. Immediately after he heard the shot, however, one witness observed defendant where he \u201cwould have been standing right over the [decedent].\u201d Less than a minute later this witness heard defendant say, \u201cOh, Lord, I didn\u2019t know it was cocked.\u201d\nDefendant testified that he shot decedent. He stated, however, that decedent had a pistol between his legs, \u201cpulled the slide back and pointed it in [defendant\u2019s] face\u201d and said: \u201cI am going to blow you away. I am not joking.\u201d\nDefendant felt \u201cabsolute terror\u201d because he knew decedent normally carried a weapon and had a reputation for using it. Decedent had told defendant he had shot a man in Virginia and a woman in Wilmington. Defendant had been with decedent when decedent had \u201c[taken] out a pistol and shot down in the floor.\u201d\nDefendant further testified he did not know his pistol was cocked, and that was exactly what he said after the shooting. He subsequently testified that he had said he did not know the pistol was loaded rather than that he did not know it was cocked. He did squeeze the trigger, but he did not think \u201cthere was anything to make it go off.\u201d His statement was, \u201cOh, Lord, I didn\u2019t know the gun was loaded.\u201d\nDefendant argues he could not be guilty of involuntary manslaughter because all the evidence showed his act was clearly intentional. He relies in part on State v. Ray, 299 N.C. 151, 261 S.E. 2d 789 (1980), as applied in State v. Brooks, 46 N.C. App. 833, 266 S.E. 2d 3 (1980). We disagree.\nInvoluntary manslaughter \u201cis the unintentional killing of a human being without either express or implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence.\u201d [Citation omitted.] \u201c[T]he crime of involuntary manslaughter involves the commission of an act, whether intentional or not, which in itself is not a felony or likely to result in death or great bodily harm.\u201d [State v.] Ray, 299 N.C. at 158, 261 S.E. 2d at 794 (emphasis added).\nState v. Hall, 54 N.C. App. 672, 674, 283 S.E. 2d 902, 903 (1981), cert. denied, 307 N.C. 470, 299 S.E. 2d 225 (1983).\nIn Ray, defendant testified that he intentionally pointed the gun at and intentionally shot at the decedent. Ray, 299 N.C. at 154-56, 261 S.E. 2d at 792-93. The evidence in State v. Cason, 51 N.C. App. 144, 275 S.E. 2d 221 (1981) and State v. Brooks, supra, like that in Ray, showed that the defendants intentionally pointed a gun at and intentionally shot at the victims. In those cases the court found that there was no evidence to support a verdict of involuntary manslaughter.\nHere, by contrast, both the State and defendant offered evidence that immediately following the shooting defendant lamented that he had not known the pistol was cocked. Defendant testified to an alternative lament that he had not known the pistol was loaded. The jury could find from this evidence that while defendant intentionally pointed and shot the pistol, he did not intend to shoot a cocked or loaded pistol; and that his shooting of a cocked or loaded pistol resulted from his handling the pistol in a culpably negligent manner. It could find culpable negligence on the part of defendant in his failure to ascertain, prior to shooting the pistol in the direction of decedent, whether it was cocked or loaded. Whether decedent\u2019s death resulted from an intentional shooting in self-defense or an unintentional shooting caused by defendant\u2019s culpably negligent failure to ascertain whether the pistol was cocked or loaded, was properly for the jury, see State v. Hall, 54 N.C. App. at 675, 283 S.E. 2d at 904, and the court would have usurped the jury\u2019s function had it allowed the motion to dismiss.\nDefendant contends the court erred in refusing his request for instructions on the violent reputation of decedent as bearing on defendant\u2019s reasonable apprehension of death or bodily harm. The court did, however, instruct that in determining the reasonableness of defendant\u2019s apprehension the jury should consider \u201cwhether . . . [decedent] had a weapon in his possession and the reputation, if any, of [decedent] for danger and violence . . . The instructions otherwise adequately informed the jury on the issue of self-defense, and we thus decline to find reversible error. See State v. Rummage, 280 N.C. 51, 54-55, 185 S.E. 2d 221, 224 (1971); State v. Cole, 31 N.C. App. 673, 677-78, 230 S.E. 2d 588, 591-92 (1976).\nDefendant contends the court erred in giving the presumptive sentence without making findings of fact as to mitigating or aggravating circumstances. \u201c[A] judge need not make any findings regarding aggravating and mitigating factors ... if he imposes the presumptive term.\u201d G.S. 15A-1340.4(b) (Cum. Supp. 1981).\nNo error.\nJudges Arnold and Hill concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney William N. Farrell, for the State.", "W. G. Smith and Bruce H. Jackson, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LOWELL EDSELL SHEPARD\nNo. 825SC841\n(Filed 1 March 1983)\n1. Homicide \u00a7 21.9\u2014 involuntary manslaughter \u2014 sufficiency of evidence\nThe evidence was sufficient to support defendant\u2019s conviction of involuntary manslaughter where the evidence showed that defendant shot decedent with a pistol, both the State and defendant offered evidence that immediately following the shooting defendant stated that he had not known the pistol was cocked, and defendant testified that he stated he had not known the pistol was loaded, since the jury could find from this evidence that, while defendant intentionally pointed and shot the pistol, he did not intend to shoot a cocked or loaded pistol, and that he was culpably negligent in failing to ascertain, prior to shooting the pistol in the direction of decedent, whether it was cocked or loaded.\n2. Homicide \u00a7 28\u2014 self-defense \u2014 instructions on reasonableness of apprehension-refusal to instruct on reputation of decedent\nIn an involuntary manslaughter prosecution in which defendant contended that he shot decedent in self-defense, the trial court did not err in refusing defendant\u2019s request for instructions on the violent reputation of decedent as bearing on defendant\u2019s reasonable apprehension of death or bodily harm where the court properly instructed the jury that in determining the reasonableness of defendant\u2019s apprehension the jury should consider whether decedent had a weapon in his possession and the reputation, if any, of decedent for danger and violence, and the instructions otherwise adequately informed the jury on the issue of self-defense.\n3. Criminal Law \u00a7 138\u2014 presumptive sentence \u2014 failure to find mitigating or aggravating circumstances\nThe trial court did not err in giving the presumptive sentence without making findings of fact as to mitigating or aggravating circumstances. G.S. 15A-1340.4(b).\nAppeal by defendant from Rouse, Judge. Judgment entered 1 April 1982 in Superior Court, New Hanover County. Heard in the Court of Appeals 10 February 1983.\nDefendant appeals from a judgment of imprisonment entered upon his conviction of involuntary manslaughter.\nAttorney General Edmisten, by Associate Attorney William N. Farrell, for the State.\nW. G. Smith and Bruce H. Jackson, Jr., for defendant appellant." }, "file_name": "0159-01", "first_page_order": 191, "last_page_order": 194 }