#### STATE v. CLARENCE HEAD.

(Filed 4 January, 1939.)

Homicide § 25 — Evidence held sufficient to support verdict of involuntary manslaughter.

A witness for the State testified to the effect that defendant pointed his gun at deceased, that the gun fired, inflicting the fatal injuries. Defendant testified that he raised his gun to unload same, that the gun went off for some unknown reason, and that he had no intention of shooting deceased. C. S., 4216 makes it unlawful to point any gun or pistol at any person, either in fun or otherwise, whether the gun he loaded or unloaded. Held: Considering the evidence in the light most favorable to the State, it is sufficient to take the case to the jury and sustain a verdict of involuntary manslaughter.

Appeal by defendant from Hill, Special Judge, at August Term, 1938, of ALEXANDER.

Criminal action on indictment charging defendant with the murder of one Glady Lackey.

Upon the call of the case for trial, the solicitor announced that he would not ask for a verdict of murder in the first degree, but would ask for verdict of murder in second degree or manslaughter, as the evidence justified.

The uncontroverted facts are substantially these: On 9 October, 1937, Glady Lackey, age 18 years, son of Robey Lackey and his wife, Stella Lackey, was shot and killed by a gun in the hands of defendant, aged 37 years, his first cousin. The shooting occurred on the back porch of the home of Robey Lackey, where Glady and his mother were standing, the defendant being on the ground. Robey Lackey and Glady Lackey and defendant were and at all times prior thereto had been good friends.

The State offered as an eye witness Mrs. Stella Lackey, who testified in substance that: She sent Glady to the barn for some eggs. "When he returned and was in the act of delivering the eggs to her, defendant, who was standing on the ground with his single-barreled gun under his right arm, barrel pointing down, raised the gun, pointing the barrel towards Glady, and then the gun fired, the load striking Glady in his left side under the arm. She said: “He fell and I said to Head, ‘Run for a doctor,’ and he started. That is all I can tell. My son died in about five minutes.” On cross-examination she testified: “When I went out on the porch to get the eggs, immediately before the shot was fired, Head said, ‘Howdy.’ That is all he said before the shot was fired. Immediately after the shot he said it was an accident, and when I said go for a doctor, he started off.”

*701Defendant, in bis own bebalf, testified that be lives at Hanes, near 'Winston-Salem. On tbe morning of 9 October, 1937, be, witb bis wife and two children, drove to tbe borne of bis father. From there be went up on tbe mountain, squirrel bunting. In returning be went to tbe borne of bis uncle, Robey Lackey. As be passed tbe barn be saw Glady, tbe deceased, and walked and talked witb him going to tbe bouse. On arriving at tbe bouse, “I stopped on the ground at tbe back porch, Glady going up on tbe porch. Stella Lackey, bis mother, come out and I said, ‘Good morning.’ I was carrying a single-barrel shotgun, breach loaded witb a hammer, under my right arm witb tbe barrel pointing towards tbe ground. . . . When I said ‘Good morning’ I aimed to unload tbe gun, and I raised the barrel witb my left band to take tbe shell out of it, and for some unknown reason it went off ... I bad no intention of shooting Glady Lackey . . .” On cross-examination, be testified: “It, tbe gun, fell from my band when it went off . . .1 do not know whether tbe gun was cocked or not.”

Verdict: Guilty of involuntary manslaughter, witb a recommendation of mercy.

Judgment: Confinement in common jail of Alexander County for four months, to be assigned to work in and about tbe county jail. Judgment suspended upon condition that defendant pay into tbe office of tbe clerk of. Superior Court for tbe benefit of Robey Lackey tbe sum of $397, to reimburse tbe latter for funeral and burial expenses incurred in tbe death of Glady Lackey, and upon tbe further condition that defendant pay tbe costs of tbe action to be taxed.

Defendant appealed to Supreme Court and assigns error.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.

Lewis & Lewis for defendant, appellant.

Per Curiam.

Tbe only question presented on this appeal is whether there is sufficient evidence, taken in tbe light most favorable to tbe State, as we must consider it, to take the case to tbe jury. In this State it is unlawful for any person to “point any gun or pistol at any person, either in fun or otherwise, whether tbe gun be loaded or not loaded.” C. S., 4216. In keeping witb uniform decision of this Court, tbe evidence in this respect carries tbe case to tbe jury. Tbe defendant has bad tbe benefit of a full and fair charge as to tbe law.

Defendant does not except to form of judgment.

In tbe trial below we find

No error.