{ "id": 8524610, "name": "STATE OF NORTH CAROLINA v. JAMES FOURNIER", "name_abbreviation": "State v. Fournier", "decision_date": "1985-03-05", "docket_number": "No. 843SC537", "first_page": "465", "last_page": "469", "citations": [ { "type": "official", "cite": "73 N.C. App. 465" } ], "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": "64 S.E. 168", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1909, "opinion_index": 0 }, { "cite": "150 N.C. 820", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273107 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/nc/150/0820-01" ] }, { "cite": "414 U.S. 874", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11762922, 11762669, 11763119, 11762751, 11762997, 11762845, 11763196, 11762557, 11762495 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/0874-06", "/us/414/0874-03", "/us/414/0874-08", "/us/414/0874-04", "/us/414/0874-07", "/us/414/0874-05", "/us/414/0874-09", "/us/414/0874-02", "/us/414/0874-01" ] }, { "cite": "195 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558380 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0249-01" ] }, { "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": "275 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644481 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0144-01" ] }, { "cite": "281 S.E. 2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574817, 8574830, 8574800, 8574776, 8574847 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0549-03", "/nc/303/0549-04", "/nc/303/0549-02", "/nc/303/0549-01", "/nc/303/0549-05" ] }, { "cite": "278 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170312 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0373-01" ] }, { "cite": "307 S.E. 2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527093 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0493-01" ] }, { "cite": "330 S.E. 2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722720, 4723239, 4722281, 4720975, 4725274 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0607-04", "/nc/313/0607-03", "/nc/313/0607-01", "/nc/313/0607-05", "/nc/313/0607-02" ] }, { "cite": "324 S.E. 2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527078 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0521-01" ] }, { "cite": "261 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574152 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0151-01" ] }, { "cite": "230 S.E. 2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "291 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558004 ], "year": 1976, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0319-01" ] }, { "cite": "247 S.E. 2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "916" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] } ], "analysis": { "cardinality": 510, "char_count": 8634, "ocr_confidence": 0.795, "pagerank": { "raw": 5.19198288571843e-08, "percentile": 0.3257020003868951 }, "sha256": "ee8e0072d9b95d10805db150a9859768999e138b925d16b1df3a1f1501de94d3", "simhash": "1:672f456e9447d512", "word_count": 1424 }, "last_updated": "2023-07-14T21:55:13.639601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES FOURNIER" ], "opinions": [ { "text": "EAGLES, Judge.\nThe question presented by this appeal is whether the trial court committed reversible error in submitting involuntary manslaughter as a possible verdict, because there was no evidence presented to support its submission. It was error and defendant\u2019s conviction must be reversed and defendant discharged.\nInvoluntary manslaughter has been defined by our Supreme Court as \u201cthe 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 State v. Wilkerson, 295 N.C. 559, 579, 247 S.E. 2d 905, 916 (1978), see also, State v. Redfern, 291 N.C. 319, 321, 230 S.E. 2d 152, 153 (1976).\nThe record before us is absolutely devoid of any evidence that defendant shot Harold Jones \u201cby some unlawful act not amounting to a felony or naturally dangerous to human life.\u201d Evidence presented by both the State and defendant tends to show that defendant intentionally shot Jones with a deadly weapon, a .22 calibre rifle, and that the wounds intentionally inflicted caused Jones\u2019 death. This was a felonious assault, G.S. 14-32, and was naturally dangerous to human life as is evidenced by Jones\u2019 death. Similarly, there is no evidence of \u201can act or omission constituting culpable negligence\u201d since the shooting of Jones was an intentional act allegedly done in self-defense. It was error, therefore, to submit the issue of whether defendant was guilty of involuntary manslaughter since there was no evidence in the record to support its submission. State v. Ray, 299 N.C. 151, 261 S.E. 2d 789 (1980); State v. Mercado, 72 N.C. App. 521, 324 S.E. 2d 285, petition for rev. allowed, 313 N.C. 607, 330 S.E. 2d 614 (1985); State v. Crisp, 64 N.C. App. 493, 307 S.E. 2d 776 (1983); State v. Martin, 52 N.C. App. 373, 278 S.E. 2d 305, rev. denied 303 N.C. 549, 281 S.E. 2d 399 (1981); State v. Cason, 51 N.C. App. 144, 275 S.E. 2d 221 (1981); State v. Brooks, 46 N.C. App. 833, 266 S.E. 2d 3 (1980).\nThe State argues that the submission of a lesser included offense not supported by the evidence is error not prejudicial to the defendant. State v. Vestal, 283 N.C. 249, 195 S.E. 2d 297, cert. denied, 414 U.S. 874 (1973); State v. Quick, 150 N.C. 820, 64 S.E. 168 (1909). The reasoning behind the State\u2019s argument is that had the jury not been given the unsupported lesser offense as an alternative, it would have returned a verdict of guilty of a higher offense. State v. Ray, supra. The State\u2019s argument must fail for the reasons that follow.\nInvoluntary manslaughter is not a, lesser included offense of murder or voluntary manslaughter. State v. Cason, supra; State v. Mercado, supra. As this court has stated:\nIt is difficult to submit an offense which is not a lesser included offense when there is no evidence to support it and then determine that if the jury had not convicted of the offense submitted, they would have convicted of another offense which does not have all the elements of the offense of which the defendant was convicted.\n51 N.C. App. at 146, 275 S.E. 2d at 222.\nFinally, we reiterate the admonitions of Judge Webb in State v. Cason, supra, and Judge (now Chief Judge) Hedrick in State v. Crisp, supra:\nOur trial judges in homicide cases arising out of the alleged intentional use of a deadly weapon would be well-advised not to submit involuntary manslaughter as a possible verdict where there is no evidence to support it. In addition to committing . . . prejudicial error . . . the trial judge who submits involuntary manslaughter under these circumstances makes his duty of declaring and explaining the law arising on the evidence impossible to fulfill; in such a case, the court\u2019s instructions can only result in \u201cconfusion worse confounded.\u201d\n64 N.C. App. at 498, 307 S.E. 2d at 780.\nWe note that N.C.P.I. \u2014 Criminal, 206.30 as it relates to second degree murder and lesser homicide offenses contains a cautionary note at footnote 1 which should be a warning adequate to prevent trial courts from submitting instructions on involuntary manslaughter when the evidence does not support the instruction.\nHere, defendant has been acquitted of all degrees of homicide other than involuntary manslaughter. The charge of involuntary manslaughter was improperly submitted to the jury because there was no evidence to support it. This error was prejudicial. The judgment of the superior court in 80CRS715 is reversed, and defendant is hereby ordered discharged.\nReversed.\nJudges Arnold and Parker concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Robert G. Webb, for the State.", "Appellate Defender Stein, by Assistant Appellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES FOURNIER\nNo. 843SC537\n(Filed 5 March 1985)\nHomicide \u00a7 30.3\u2014 murder prosecution \u2014 submission of involuntary manslaughter\u2014 prejudicial error\nThe trial court in a second-degree murder case committed prejudicial error in submitting involuntary manslaughter as a possible verdict where all the evidence showed that defendant intentionally shot the victim with a .22 caliber rifle and defendant contended that he acted in self-defense, and defendant is entitled to be discharged where the jury found defendant guilty of involuntary manslaughter and acquitted defendant of all other degrees of homicide.\nAppeal by defendant from Strickland, Judge. Judgment entered 28 March 1980 in Superior Court, CRAVEN County. Heard in the Court of Appeals 7 February 1985.\nThis is a criminal case in which defendant, James Fournier, was indicted and tried for first degree murder. From a verdict of guilty of involuntary manslaughter and a sentence of imprisonment, defendant appeals.\nThe essential facts are:\nOn 20 January 1980, defendant shot and killed Harold Jones, an acquaintance. Evidence at trial tended to show that Jones and Douglas Gaskins, defendant\u2019s brother-in-law, arrived together at defendant\u2019s trailer home. No one responded to Gaskins\u2019 knock or call and Gaskins left Jones inside defendant\u2019s trailer while he went across the street to look for defendant.\nDefendant testified that he had seen Gaskins and Jones drive up but pretended that he was not home because he was afraid of Jones. Defendant went to lock his door and was surprised to find Jones already inside.\nJones allegedly told defendant that defendant had \u201csold him a pig in a poke\u201d and that he was going to \u201cburn\u201d defendant, gesturing with his coat as if he had a gun. Defendant ran down the hallway to get his gun and saw Jones then holding a pistol. Defendant fired a shot from his .22 calibre rifle over Jones\u2019 head to \u201cscare him.\u201d Defendant then directed Jones to drop the pistol and raise his hands. Jones pointed the pistol at defendant and defendant began firing his rifle at Jones.\nIn response to a call for an ambulance and police, Deputy Sheriff Hamilton, of the Craven County Sheriffs Department, arrived at the trailer park. Defendant then told the deputy, \u201cMr. Hamilton, I\u2019m the one who shot him. He broke into my trailer with a gun.\u201d In checking Jones for vital signs, Deputy Hamilton discovered a .38 calibre pistol lying approximately 3 feet from Jones\u2019 body.\nSBI Agent Mike Lewis testified as to the location within the trailer of defendant\u2019s .22 calibre rifle, the loaded .38 calibre pistol on the floor, ten spent .22 shells and three bullet holes fired from the hallway entrance by the .22 calibre rifle.\nNo fingerprints were found on the .38 calibre pistol and bloodstains on the pistol were not checked for type.\nThe .22 calibre rifle was confirmed as the homicide weapon and Dr. Walter Gable described 8 or 9 gunshot wounds in Jones\u2019 body and concluded that the fatal wound had penetrated the aorta. Most of the bullets had entered Jones\u2019 body from the left side.\nDefendant presented evidence of self-defense at trial and testified that he had known Jones for 3 or 4 months, that Jones had pulled a pistol on him in the past and that he had reason to fear Jones because of a dispute over a drug transaction \u2014 the \u201cpig in the poke.\u201d Defendant denied that he had \u201cplanted\u201d the .38 calibre pistol for investigators to find.\nThe trial court instructed the jury on the possible verdicts of second degree murder, voluntary manslaughter, involuntary manslaughter and not guilty. Instructions were also given as to self-defense. In response to the jury\u2019s request for definitions of voluntary and involuntary manslaughter, the trial court briefly repeated the definitions.\nThe jury returned a verdict of guilty of involuntary manslaughter.\nAttorney General Edmisten, by Assistant Attorney General Robert G. Webb, for the State.\nAppellate Defender Stein, by Assistant Appellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant." }, "file_name": "0465-01", "first_page_order": 497, "last_page_order": 501 }