#### STATE v. WASH BRYANT.

(Filed 20 October, 1920.)

1. Homicide — Criminal Haw — Instructions—Murder—Manslaughter—Appeal and Error.

Where there are facts in evidence tending to reduce the crime to manslaughter, andi the prisoner is tried under an indictment for murder, it is the duty of the trial judge to submit this view of the case to the jury under a correct charge, and his failure to do so will constitute reversible error, though the defendant may have been convicted of the higher offense.

2. Same — Prayers for Instructions.

Where, upon the trial for murder, there are facts in evidence permitting the inference that the homicide was not intentional, but was unintentionally caused by the defendant’s careless use of his pistol, in a culpably negligent manner, a charge of the court to the jury which makes no reference to the offense of manslaughter, and ignores a special request presenting these principles, is reversible error. '

3. Homicide— Criminal Haw— Instructions— Statutes — Murder — Manslaughter.

Where the defendant is being tried under an indictment for murder, and there is evidence, in his behalf, tending to show that the crime was of the less offense of manslaughter, a charge of the court' to the jury' which gives no instructions pertinent to these respective positions, or otherwise as to what may constitute either murder or manslaughter, is erroneous in not sufficiently complying with our statute, Rev., 535, requiring that the court shall declare and explain to the jury the law pertaining to the facts in evidence.

4. Criminal Law— Verdicts— Murder— Lesser Offense — Manslaughter— Statutes.

While a general verdict of “guilty” on a trial for murder may be considered in connection with the evidence and the charge a sufficient compliance with our statute, the profession and officials engaged in trials of this supreme importance are admonished that verdicts should be rendered in the precise form required by the statute, and specify in terms the degree ■of the crime of which the prisoner is convicted. Rev., 3271.

INDICTMENT for murder, tried before Bond, Jat May Term, 1920,-■of HARNETT.

In apt time the State announced that it would not ask for a verdict of murder in the first degree, and thereupon, and on plea of not guilty, there was evidence on the part of the State to the effect that in January, preceding the finding of the bill of indictment, defendant shot and Billed his wife, Ida Bryant, and under circumstances that would make such killing murder in the second degree, as claimed by the State.

There was evidence on the part of the defendant that at the time of the occurrence the defendant, whose corn crib, situate some distance off, *691bad been broken into, stepped to tbe window of tbe bouse and asked bis wife to band bim bis pistol, and in doing so it was accidentally discharged, causing ber death. .

On these opposing positions tbe issue was submitted to tbe jury, who rendered their verdict of “Guilty.”

Judgment that defendant be imprisoned for tbe term of 12 years in tbe State’s prison, and defendant excepted and appealed, assigning errors.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

Young & Best for defendant.

Hoke, J.

It has been held in numerous decisions with us that “Where on an indictment for murder there are facts in evidence tending to reduce tbe crime to manslaughter, it is tbe duty of tbe presiding judge to submit this view of tbe ease to tbe jury, under a correct charge, and bis failure to do so will constitute reversible error, though tbe defendant may have been convicted for tbe higher offense.” S. v. Merrick, 171 N. C., 788-791, citing S. v. Clyde Kennedy, 169 N. C., 289; S. v. Kendall, 143 N. C., 654 and 664; S. v. White, 138 N. C., 704 and 715; S. v. Foster, 130 N. C., 666-673; S. v. Jones, 79 N. C., 630; S. v. Matthews, 148 Mo., 185; Baker v. The People, 40 Mich., 411. That opinion then quotes from Kendall’s case, as follows: “It is a principle very generally accepted that on a charge of murder, if there is any evidence to be considered by tbe jury which tends to reduce tbe crime to manslaughter, tbe prisoner, by proper motion, is entitled to have this aspect of tbe case presented under a correct charge, and if tbe charge given on this question is incorrect, sucH a mistake will constitute reversible error, even though tbe prisoner should be convicted of tbe. graver crime, for it cannot be known whether, if tbe case bad been presented to tbe jury under a •correct charge, they might not have rendered tbe verdict for tbe lighter •offense.”

And from Foster’s case: “If it bad been clearly explained to tbe jury what constituted murder in tbe second degree, of which, through bis counsel, be bad admitted himself to be guilty, it may be that tbe jury would have coincided with that view; but in tbe absence of instruction •on that offense, with only tbe issue of murder in tbe first degree placed before them with instructions only as to that offense, with evidence of tbe homicide, it may well be that tbe jury held against tbe prisoner, that be was guilty, simply because they were not informed as. to the constituent elements of tbe lesser offense.” And Jones’ case, supra, is also referred to as a direct authority for tbe position as stated.

*692In tbe present case, there were facts in evidence on tbe part of tbe defendant permitting tbe inference tbat tbe homicide was not intentional, but may have been tbe result of culpable negligence on tbe part of tbe defendant, and so amounting only to tbe crime of manslaughter. S. v. Stitt, 146 N. C., 643; S. v. Vines, 93 N. C., 493.

A perusal of tbe record will disclose tbat not only is there no reference to tbe offense of manslaughter in the charge, but a special request for instructions presenting tbe question was refused or ignored by bis Honor, and for this error tbe issue must be referred to another jury.

In Stitt’s case, supra, it was held, among other things, tbat: “Before a conviction for murder can be bad, an unlawful and intentional taking of another’s life must be shown or imputed, as is sometimes tbe case, by reason of tbe killing with a deadly weapon, or under circumstances which indicate a reckless indifference to human life.”

And on tbe record tbe charge is objectionable further in tbat it gives to tbe jury no instructions pertinent to these respective positions or otherwise as to what may constitute either murder or manslaughter, and is not a sufficient compliance with the statute applicable (Rev., 535), requiring tbat tbe court shall declare and explain tbe law appertaining to tbe facts in evidence.

Defendant excepts, also, for that the jury have rendered a general verdict of “guilty” without specifying tbe degree of tbe crime as directed by sec. 3271 of tbe Revisal.

"We have held in several decisions on tbe subject tbat a verdict of that kind may be considered a sufficient compliance with the statute when tbe degree of the crime can be clearly ascertained by reference to the evidence in the case and the charge of the court (S. v. Wiggins, 171 N. C., 817-818, and authorities cited), but we deem it not amiss to again admonish tbe profession and officials engaged in trials of this supreme importance, tbat tbe verdict should be rendered in tbe precise form tbat the statute requires; that is, to specify in terms tbe degree of tbe crime of which tbe prisoner is convicted. S. v. Murphy, 157 N. C., 614.

For the reasons stated, there must be a new trial of the case, and it is so ordered.

New trial.