{ "id": 8571995, "name": "STATE OF NORTH CAROLINA v. ALBERT LEE WRENN", "name_abbreviation": "State v. Wrenn", "decision_date": "1971-12-15", "docket_number": "No. 27", "first_page": "676", "last_page": "689", "citations": [ { "type": "official", "cite": "279 N.C. 676" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "179 S.E. 2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "278 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559984 ], "year": 1971, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0210-01" ] }, { "cite": "159 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575214 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0333-01" ] }, { "cite": "132 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573591 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0186-01" ] }, { "cite": "71 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626889 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0752-01" ] }, { "cite": "142 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574153 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0508-01" ] }, { "cite": "166 S.E. 387", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614844 ], "opinion_index": 0, "case_paths": [ "/nc/203/0528-01" ] }, { "cite": "85 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "241 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610424 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/241/0356-01" ] }, { "cite": "161 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559380 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0062-01" ] }, { "cite": "165 S.E. 2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557876 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0108-01" ] }, { "cite": "153 S.E. 155", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "opinion_index": 0 }, { "cite": "198 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618022 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/nc/198/0682-01" ] }, { "cite": "108 S.E. 2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "250 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621655 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/250/0229-01" ] }, { "cite": "158 S.E. 2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572588 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0261-01" ] }, { "cite": "128 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "61 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603572 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/232/0402-01" ] }, { "cite": "170 S.E. 2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559824 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0662-01" ] }, { "cite": "181 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565707 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0073-01" ] }, { "cite": "160 S.E. 577", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "opinion_index": 0 }, { "cite": "201 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626433 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/nc/201/0494-01" ] }, { "cite": "87 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616735 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0476-01" ] }, { "cite": "172 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561421 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0361-01" ] }, { "cite": "175 S.E. 296", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "opinion_index": 0 }, { "cite": "206 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632381 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/206/0682-01" ] }, { "cite": "45 S.E. 2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "228 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625474 ], "opinion_index": 1, "case_paths": [ "/nc/228/0228-01" ] }, { "cite": "68 S.E. 148", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "pin_cites": [ { "page": "151" } ], "opinion_index": 1 }, { "cite": "152 N.C. 822", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273253 ], "opinion_index": 1, "case_paths": [ "/nc/152/0822-01" ] }, { "cite": "179 S.E. 427", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "208 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597028 ], "opinion_index": 1, "case_paths": [ "/nc/208/0127-01" ] }, { "cite": "54 S.E. 427", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1957, "opinion_index": 1 }, { "cite": "141 N.C. 857", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254284 ], "year": 1957, "pin_cites": [ { "page": "859" } ], "opinion_index": 1, "case_paths": [ "/nc/141/0857-01" ] }, { "cite": "130 S.E. 627", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1957, "pin_cites": [ { "page": "629" } ], "opinion_index": 1 }, { "cite": "190 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612540 ], "year": 1957, "pin_cites": [ { "page": "679" } ], "opinion_index": 1, "case_paths": [ "/nc/190/0674-01" ] }, { "cite": "23 S.E. 431", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "117 N.C. 791", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654067 ], "pin_cites": [ { "page": "798-9" } ], "opinion_index": 1, "case_paths": [ "/nc/117/0791-01" ] }, { "cite": "83 S.E. 972", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "976" } ], "opinion_index": 1 }, { "cite": "168 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658175 ], "pin_cites": [ { "page": "182-3" } ], "opinion_index": 1, "case_paths": [ "/nc/168/0173-01" ] }, { "cite": "111 S.E. 869", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "183 N.C. 795", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659280 ], "opinion_index": 1, "case_paths": [ "/nc/183/0795-01" ] }, { "cite": "117 S.E. 2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "43" } ], "opinion_index": 1 }, { "cite": "253 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625207 ], "pin_cites": [ { "page": "353" } ], "opinion_index": 1, "case_paths": [ "/nc/253/0348-01" ] }, { "cite": "88 S.E. 501", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "171 N.C. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272436 ], "opinion_index": 1, "case_paths": [ "/nc/171/0788-01" ] }, { "cite": "179 S.E. 2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "278 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559984 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/nc/278/0210-01" ] }, { "cite": "153 S.E. 155", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "opinion_index": 1 }, { "cite": "198 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618022 ], "year": 1930, "opinion_index": 1, "case_paths": [ "/nc/198/0682-01" ] }, { "cite": "108 S.E. 2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 1 }, { "cite": "250 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621655 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/nc/250/0229-01" ] }, { "cite": "128 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "893" } ], "opinion_index": 1 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "year": 1963, "opinion_index": 1, "case_paths": [ "/nc/258/0453-01" ] } ], "analysis": { "cardinality": 1166, "char_count": 30698, "ocr_confidence": 0.538, "pagerank": { "raw": 1.3847784605061912e-06, "percentile": 0.9905116089779752 }, "sha256": "aec381c490ad3f7214c47d3212966250abc30e842c24daa9f39c219071b760f1", "simhash": "1:f70d50a4bcaf8cfe", "word_count": 5444 }, "last_updated": "2023-07-14T15:36:58.436463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ALBERT LEE WRENN" ], "opinions": [ { "text": "HUSKINS, Justice.\nDefendant assigns as error the failure of the trial court to submit manslaughter as a permissible verdict.\nWhere, under the bill of indictment, it is permissible to convict defendant of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Riera, 276 N.C. 361, 172 S.E. 2d 535 (1970). Erroneous failure to submit the question of defendant\u2019s guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the court\u2019s charge. State v. Davis, 242 N.C. 476, 87 S.E. 2d 906 (1955). This principle applies, however, only in those cases where there is evidence of guilt of the lesser degree. State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). If all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree, the principle does not apply and the court correctly refuses to charge on the unsupported lesser degree. State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971), and cases cited. See State v. Freeman, 275 N.C. 662, 170 S.E. 2d 461 (1969), for discussion of the law in this and other jurisdictions when there is evidence sufficient to require submission of manslaughter but the jury convicts of murder in the first degree.\nMurder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. 14-17; State v. Lamm, 232 N.C. 402, 61 S.E. 2d 188 (1950). Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963). Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Benge, 272 N.C. 261, 158 S.E. 2d 70 (1967). Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. State v. Foust, supra; State v. Honeycutt, 250 N.C. 229, 108 S.E. 2d 485 (1959); State v. Satterfield, 198 N.C. 682, 153 S.E. 155 (1930).\nIf the State has satisfied the jury beyond a reasonable doubt that defendant intentionally shot his wife with a shotgun and thereby proximately caused her death, \u201ctwo presumptions arise: (1) that the killing was unlawful, and (2) that it was done with malice; and, nothing else appearing, the defendant would be guilty of murder in the second degree.\u201d State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969); State v. Propst, 274 N.C. 62, 161 S.E. 2d 560 (1968). Justice Bobbitt (now Chief Justice) accurately analyzed these principles in State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322 (1955), as follows:\n\u201cWhen the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree. In State v. Gregory, 203 N.C. 528, 166 S.E. 387 [1932], where the defense was that an accidental discharge of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an intentional killing with a deadly weapon; and since the Gregory case it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression, intentional killing, is not used in the sense that a specific intent to kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. [Citations omitted.] A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions. . . . The presumptions do not arise if an instrument, which is per se or may be a deadly weapon, is not intentionally used as a weapon, e.g., from an accidental discharge of a shotgun.\u201d\nHere, the presumptions arise if the jury finds, under proper instructions, that defendant intentionally shot his wife and thereby caused her death. Conversely, they do not arise if the jury finds the shotgun accidentally discharged, resulting in her death. Defendant\u2019s assertion that the killing of his wife with a deadly weapon was accidental is not an affirmative defense which shifts the burden of proof to him to exculpate himself from a charge of murder. On the contrary, it is merely a denial that the defendant has committed the crime, and the burden remains on the State to prove a homicide resulting from the intentional use of a deadly weapon before any presumption arises against the defendant. State v. Phillips, 264 N.C. 508, 142 S.E. 2d 337 (1965). Accord, State v. Williams, 235 N.C. 752, 71 S.E. 2d 138 (1952).\nAlthough the State\u2019s evidence tends to show an intentional killing with malice and with premeditation and deliberation, defendant\u2019s evidence is to the effect that he only intended to scare his wife and had no intention of killing her; that in the scuffle between the parties the shotgun went off accidentally. In this setting, and with credibility a matter for the jury, the court should have submitted involuntary manslaughter with appropriate instructions. \u201cIt seems that, with few exceptions, it may be said that every unintentional killing of a human being proximately caused by a wanton or reckless use of firearms, in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter.\u201d State v. Foust, supra (258 N.C. 453, 128 S.E. 2d 889). As it relates to involuntary manslaughter, intent is not an issue. The crux of that crime is whether an accused unintentionally killed his victim by a wanton, reckless, culpable use of a firearm or other deadly weapon. State v. Phillips, supra (264 N.C. 508, 142 S.E. 2d 337). Accord, State v. Brooks, 260 N.C. 186, 132 S.E. 2d 354 (1963); State v. Griffin, 273 N.C. 333, 159 S.E. 2d 889 (1968).\nSince the evidence offered by defendant, if believed by the jury, is sufficient to support a verdict of involuntary manslaughter, which is a lesser degree of the crime charged in the bill of indictment, the court erred in excluding it from the list of permissible verdicts. This error entitles defendant to a new trial.\nDiscussion of the remaining assignments of error is deemed unnecessary. However, it is not amiss to call attention to the fact that the use of the phrase \u201cnatural and probable result\u201d in homicide charges has been expressly disapproved. \u201cThe crucial question is whether a wound inflicted by an unlawful assault proximately caused the death \u2014 not whether death was a natural and probable result of such a wound and should have been foreseen. Foreseeability is not an element of proximate cause in a homicide case where an intentionally inflicted wound caused the victim\u2019s death.\u201d State v. Woods, 278 N.C. 210, 219, 179 S.E. 2d 358, 363 (1971).\nNew trial.", "type": "majority", "author": "HUSKINS, Justice." }, { "text": "Justice Sharp\ndissenting.\nAs stated in the majority opinion, while defendant was convicted of second-degree murder, the State\u2019s evidence makes out a case of murder in the first degree. Concededly, if there is any evidence which tends to reduce the crime to manslaughter, defendant is entitled to have this issue submitted to the jury upon a proper charge. State v. Merrick, 171 N.C. 788, 88 S.E. 501.\nDefendant\u2019s version of the homicide and the events preceding it, except when quoted, are summarized as follows:\nThe deceased, defendant\u2019s wife and the mother of his five children, had been carrying on an illicit love affair with one Bob Dalton. On the afternoon before her death defendant accused her of it, and she taunted him with his stupidity for not having discovered it earlier. He ordered her to leave in these words: \u201cWoman, you\u2019d better not be here when I get back or you\u2019re going to be a dead woman.\u201d At the time he said it, however, he did not mean it.\nDeceased went to the home of her married daughter, taking with her the two youngest children, Diane and Arnold. That evening defendant brought the children home. Later that night he decided he could not afford a baby sitter and he would make his wife give up her job, stay at home, and care for the children. He returned to his daughter\u2019s and made his wife come back. He told her he \u201cwasn\u2019t sleeping with her any more,\u201d and made her get in bed with the little girl. When he awakened the next morning his wife was gone.\nAfter two drinks he decided that the only thing he could do about the situation was to give his wife \u201ca good scaring.\u201d Thereupon he wrote the following note: \u201cI can\u2019t live with a woman that does me like she does so I\u2019ll end it all. Please you or all (the next word is illegible) to take what I\u2019m going to do so bury us together.\u201d Defendant placed this note on the couch, got his shotgun, and put four shells in it.\nDefendant was sitting on the couch with the gun beside him when his wife, preceded by Diane and Arnold, came in the front door about thirty minutes later. Defendant asked her where she had been. She replied that it was none of his damn business. He said he was going to make it some of his business and reached back for the shotgun. She ran out of the front door and jumped off the porch. With the intention of scaring her he fired straight out the door by which she had left. The shot hit his truck. She ran around the comer of the house to hide behind a trailer. When she raised her head he pointed the shotgun at her. She ducked; he threw up the gun and fired. This shot hit the side of the house. He then walked around to the back of the trailer \u201cwhere she was squatting down.\u201d She \u201clet into cussing\u201d him. He pushed her over, shook his finger at her and said, \u201cTell me why in the world I shouldn\u2019t just kill you laying right there?\u201d Defendant\u2019s version of what happened after he said that is quoted verbatim as follows:\n\u201cShe reached with her left hand and got the end of my shotgun and pulled it up to her head like that, and got it with the other hand like that, and that\u2019s when she started kicking at me. I was trying to pull it away from her and that\u2019s when it went off. . . . The only intention I had was to scare my wife and make her do better. . . . When I shot her in the head, she was lying on the right side with her two hands on the end of the gun barrel. . . .\n\u201cI wasn\u2019t so drunk I didn\u2019t know what I was doing. I knew what I was doing. . . .\n\u201cThat\u2019s what I\u2019ve told; that I wrote this note and armed myself with the shotgun and went out to where my wife was and I\u2019m telling this jury that she brought it all on herself and she is the one that put the gun up to her head. I had the gun in my hand at the time it went off.\n\u201cI don\u2019t think I had my hand on the trigger when it fired and blew her head off. I had my right hand like this, and I said, \u2018Tell me why I shouldn\u2019t kill you right here,\u2019 and that\u2019s when she grabbed that gun and started kicking. I grabbed back with the gun to pull it away. She did have both hands on the barrel. She did not have her hands on the trigger at all. I don\u2019t remember having my hand on the trigger when it fired and killed her. I was trying to get the gun away from her.\u201d\nAt the time of the shooting defendant\u2019s twelve-year-old son, Arnold, and his little girl, Diane, were at the house witnessing these events.\nThe majority decision is that the foregoing testimony, if the jury should believe it, would support a verdict of involuntary manslaughter and that defendant is entitled to a new trial because the judge excluded it from the list of permissible verdicts. In my view, evidence of manslaughter is lacking, and defendant is guilty of murder in the second degree upon his own statement.\nThe distinction between murder in the second degree and manslaughter is the presence or absence of malice, express or implied. Murder in the second degree is the unlawful killing of another with malice but without premeditation and deliberation. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Downey, 253 N.C. 348, 353, 117 S.E. 2d 39, 43.\nMalice has many definitions. To the layman it means hatred, ill will or malevolence toward a particular individual. To be sure, a person in such a state of mind or harboring such emotions has actual or particular malice. State v. Benson, 183 N.C. 795, 111 S.E. 869. In a legal sense, however, malice is not restricted to spite or enmity toward a particular person. It also denotes a wrongful act intentionally done without just cause or excuse; \u201cwhatever is done \u2018with a willful disregard of the rights of others, whether it be to compass some unlawful end, or some lawful end by unlawful means constitutes legal malice.\u2019 \u201d State v. Knotts, 168 N.C. 173, 182-3, 83 S.E. 972, 976. It comprehends not only particular animosity \u201cbut also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person.\u201d 21 A. & E. 133 (2d Edition 1902). Accord, State v. Long, 117 N.C. 791, 798-9, 23 S.E. 431.\nThis Court has said that \u201c [m] alice does not necessarily mean an actual intent to take human life; it may be inferential or implied, instead of positive, as when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.\u201d State v. Trott, 190 N.C. 674, 679, 130 S.E. 627, 629; State v. Lilliston, 141 N.C. 857, 859, 54 S.E. 427. In such a situation \u201cthe law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist.\u201d 1 Wharton, Criminal Law and Procedure \u00a7 245 (Anderson, 1957).\nManslaughter is of two types \u2014 voluntary and involuntary. Instances of voluntary manslaughter are (1) a killing by reason of anger suddenly aroused by provocation which the law deems adequate to dethrone reason temporarily and thus to displace malice; and (2) a killing resulting from the use of excessive force in the exercise of the right of self-defense. State v. Woods, 278 N.C. 210, 179 S.E. 2d 358; State v. Marshall, 208 N.C. 127, 179 S.E. 427; State v. Merrick, supra; State v. Baldwin, 152 N.C. 822, 68 S.E. 148. Thus \u201cunder given conditions, this crime may be established, though the killing has been both unlawful and intentional.\u201d State v. Baldwin, supra at 829, 68 S.E. at 151.\nClearly the evidence in this case does not justify a charge upon voluntary manslaughter. Defendant makes no contention that he shot his wife in the heat of passion or in self-defense. By his testimony the discharge of the gun was not intentional.\nInvoluntary manslaughter is 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. State v. Foust, 258 N.C. 453, 128 S.E. 2d 889; State v. Honeycutt, 250 N.C. 229, 108 S.E. 2d 485; State v. Satterfield, 198 N.C. 682, 153 S.E. 155. In Foust, it is said that ordinarily an unintentional homicide resulting from the reckless use of firearms \u201cin the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter.\u201d Id. at 459, 128 S.E. 2d at 893. (Emphasis added.) When the circumstances do show a heart devoid of a sense of social duty, the homicide cannot be involuntary manslaughter.\nDefendant\u2019s appeal, and the majority decision that he is entitled to have the issue of involuntary manslaughter submitted to the jury, are based upon defendant\u2019s testimony. He asserts that he did not intend to shoot his wife; that his sole purpose was to give her \u201ca good scaring.\u201d Conceding the truth of defendant\u2019s testimony that he did not intentionally fire the gun, still his admitted conduct was so wanton and reckless of consequences, and so naturally dangerous to human life, that the law will imply malice from it. In determining the degree of homicide, the events immediately preceding the killing may not be disassociated from the actual shooting.\nFirst, defendant shot straight out the door through which his wife had fled when she saw him reach for the gun. Then he pursued her and, discovering her behind a trailer, he pointed the gun at her, a violation of G.S. 14-34. When she ducked he threw up the gun and fired a second shot, after which he went to where she was \u201csquatting\u201d and pushed her to the ground. Standing over her, gun in hand, he inquired why he shouldn\u2019t kill her \u201claying right there.\u201d And \u201cthat\u2019s when she grabbed the gun and started kicking.\u201d\nSurely she had every reason to believe that defendant intended to kill her. He should have expected her to grab the barrel of the gun in an attempt to divert it, the only defensive move she could have made as she lay on the ground at his feet. Certainly he should have known that the gun was likely to discharge in any such struggle for its possession.\nIt would defy not only the legal definitions but also common sense for the law to allow defendant, under the circumstances here disclosed, to say that, because the gun fired while he was trying to get it away from the woman he had threatened to kill and who obviously thought he meant to kill her, the shooting was unintentional and his conduct not malicious. His own statement precludes any disclaimer of malice and convicts him of murder in the second degree.\nOne who is an aggressor, or who enters a fight voluntarily without lawful excuse, may not plead self-defense when he slays his adversary. State v. Randolph, 228 N.C. 228, 45 S.E. 2d 132. Similarly, one who engages in a struggle over a gun with another, whom he has threatened to kill with it, should not be heard to say that the killing was unintentional when the gun is discharged in the fracas.\nDefendant\u2019s acts, naturally dangerous to human life and evidencing a callous recklessness, establish malice as a matter of law, in my view. That he would do such deeds in the presence of his two young children is a further manifestation of a \u201cheart devoid of a sense of social duty.\u201d My vote is to uphold the trial below.", "type": "dissent", "author": "Justice Sharp" } ], "attorneys": [ "Wallace C. Harrelson, Public Defender, Eighteenth Judicial District, for defendant appellant.", "Robert Morgan, Attorney General; Sidney S. Eagles, Jr., Assistant Attorney General; Russell G. Walker, Jr., Staff Attorney, for the State of North Carolina." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALBERT LEE WRENN\nNo. 27\n(Filed 15 December 1971)\n1. Criminal Law \u00a7 115 \u2014 submission of lesser degrees\nWhere, under the bill of indictment, it is permissible to convict defendant of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions.\n2. Criminal Law \u00a7 115\u2014 failure to submit lesser degrees \u2014 conviction of crime charged\nErroneous failure to submit the question of defendant\u2019s guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the court\u2019s charge.\n3. Homicide \u00a7 14\u2014 intentional shooting which proximately causes death \u2014 presumptions\nIf the State has satisfied the jury beyond a reasonable doubt that defendant intentionally shot his wife with a shotgun and thereby proximately caused her death, the presumptions arise that the killing was (1) unlawful and (2) with malice; and, nothing else appearing, the defendant would be guilty of murder in the second degree.\n4. Homicide \u00a7 14\u2014 assertion that killing was accidental \u2014 burden of proof\nDefendant\u2019s assertion that the killing of his wife with a deadly weapon was accidental is not an affirmative defense which shifts the burden of proof to him to exculpate himself from a charge of murder, but is merely a denial that he has committed the crime, and the burden remains on the State to prove a homicide resulting from the intentional use of a deadly weapon before any presumption arises against defendant.\n5. Homicide \u00a7 30\u2014 failure to submit involuntary manslaughter\nIn this prosecution of defendant for first degree murder of his wife with a shotgun, the trial court erred in failing to submit involuntary manslaughter as a possible verdict where defendant\u2019s evidence was to the effect that he only intended to scare his wife with the shotgun and had no intention of killing her, and that in the scuffle between the parties the shotgun went off accidentally.\n6. Homicide \u00a7 6\u2014 involuntary manslaughter\nThe crux of the crime of involuntary manslaughter is whether an accused unintentionally killed his victim by a wanton, reckless, culpable use of a firearm or other deadly weapon.\n7. Homicide \u00a7 23\u2014 proximate cause of death \u2014 instructions \u2014 use of \u201cnatural and probable result\u201d\nThe use of the phrase \u201cnatural and probable result\u201d in homicide instructions is disapproved, the crucial question being whether a wound inflicted by an unlawful assault proximately caused the death.\nJustice Sharp dissenting.\nAppeal by defendant from Johnston, J., 2 December 1970 Session, Guilford Superior Court.\nDefendant was tried upon a bill of indictment, proper in form, charging him with the first degree murder of his wife Mary Etta Wrenn on 25 July 1970.\nThe State\u2019s evidence tends to show that various neighbors of defendant and deceased were in the general vicinity of the Wrenn home at the time of the killing and heard three gunshots at the Wrenn residence. One witness heard a gunshot, saw defendant in the yard struggling with a long object, and then heard two more shots. Shortly thereafter the sheriff\u2019s office was advised of the difficulty by telephone, and ten minutes later the defendant himself called the sheriff\u2019s office, stating that he had killed his wife and needed help immediately. Officers were dispatched to the scene and found defendant sitting on the front porch unarmed. Mrs. Wrenn\u2019s body was lying facedown in the yard near a trailer. Her head, surrounded by a pool of blood, was partially blown away and particles of the brain were scattered around the yard. Defendant was fully advised of his constitutional rights at the scene, placed under arrest, and taken to jail.\nThe investigating officers entered the home and found the death weapon, a shotgun, leaning against the end of a table. On the sofa in the living room the officers found a note in defendant\u2019s handwriting which stated: \u201cI can\u2019t live with a woman that does me like she does so I\u2019ll end it all. Please you or all (illegible) to take what I\u2019m going to do so bury us together.\u201d\nDefendant was again warned of his rights at the jail, stated that he understood them, and freely, knowingly and voluntarily made a statement to the sheriff which was transcribed in the sheriff\u2019s own handwriting and signed by defendant after the transcription had been read to him. That statement reads as follows: \u201cI ran her off yesterday and she went to her daughter\u2019s, Shirley Engle\u2019s, living in a trailer on Summit Avenue. Friday night I went over to Shirley\u2019s and brought the children home. When I put them to bed, I started drinking. I went back to Shirley\u2019s trailer and she drove her car home, and I followed her. I made her go to bed and I had another drink or two and went to bed. When I woke up about noon, she was gone. About an hour after I got up, she drove in with the kids. I shot at her when she started in the house while I was writing the note on the sofa, and she ran around the house toward the garden, and I ran out the front door behind her and got around in front of her and shot her. The gun had halfway jammed and I had to get the empty out. When I got around in the yard, she was squatted down behind a trailer and we had a scuffle and she was laying on the ground grabbing at my gun when I shot her. I make this statement freely and voluntarily and have been advised of my rights.\u201d\nThe State\u2019s evidence further tends to show that when the jailer asked defendant which funeral home he wanted to take care of the body he said, \u201cI don\u2019t give a damn. Let the family take care of it.\u201d\nDefendant testified in his own behalf and offered other witnesses whose testimony tends to depict the background of the tragedy.\nRonald Lee Wrenn, twenty-year-old son of defendant and deceased, testified that his mother had been keeping company for two months with a man named Bob Dalton; that his father and mother had a big argument on Friday night before his mother was killed on Saturday; that his father stated on Friday night that he had found out about Bob Dalton and had told his mother to leave.\nArnold Wrenn, twelve-year-old son of defendant and deceased, testified that his mother was keeping company with Bob Dalton, and he had accompanied them when they would go out to eat and to other places. Bob Dalton would come to their home when his father was absent and ask the children to go to another room or \u201cto the store or something.\u201d He told his father about the situation on the day before his mother was killed. He and his mother came home on Saturday morning, walked in the house, and saw his father in the hallway. Nothing was said. His mother ran out of the house and was about halfway around the house when the first shot, which hit the truck, was fired. His father went around the house and he ran into his brother\u2019s room, and when he looked out the window his mother had hold of the end of the gun barrel and they were struggling with the gun. \u201cShe kind of fell and was kicking his hands and his chest and made the gun go off and it hit her in the head.\u201d He and his sister then went to the front door and his father told them to leave. On Friday, the day before his mother was killed, he heard his father tell her, \u201cWoman, you\u2019d better not be here when I get back or you\u2019re going to be a dead woman\u201d; and on Saturday, just before his mother was killed, he heard his father say he \u201cought to just kill her there or words to that effect.\u201d\nAlbert Lee Wrenn, testifying in his own behalf, said that about six o\u2019clock one morning he received a phone call from Bob Dalton\u2019s wife in which she stated that Mrs. Wrenn was running around with her husband; that he didn\u2019t believe it and went to where his wife worked and asked her about it. His wife stated there was nothing to it and he forgot about it. On Tuesday night before the killing on Saturday, Bob Dalton\u2019s wife telephoned again and said Mrs. Wrenn had bought Mr. Dalton a shirt and had placed a note in the pocket stating that she was in love with him. Mrs. Wrenn walked into the room while that conversation was taking place and again denied the accusation. On Friday morning his son Arnold told him that his mother had been going with Bob Dalton and that they had been over to Shirley Engle\u2019s the night before. He went to his daughter\u2019s home, and she verified what Arnold had told him. He returned home and again confronted his wife with the accusations, to which she replied, \u201cIf you hadn\u2019t been so damned stupid, you\u2019d have realized it the first time that woman called you.\u201d He then told her to be gone when he got home from work that night. When he came home from work Friday night, his wife and children were gone. He realized he couldn\u2019t afford a baby-sitter and decided that he would make his wife come back home, quit her job, and take care of the children. He went to the home of his daughter, Shirley, got his wife and children, took them home, and put the children to bed. He drank half a fifth of Old Grandad whiskey and went to bed, telling his wife to sleep with the children. When he arose on Saturday morning his wife and children were gone, and he then decided it was necessary to scare her in order to bring about a change in her conduct. He wrote the note offered in evidence by the State, and shortly thereafter his wife drove into the yard with the two youngest children, Diane and Arnold. She entered the house, and he asked her where she had been. She replied \u201cnone of your damn business,\u201d and he said \u201cI\u2019m going to make it some of mine,\u201d and reached for the shotgun. She went out the front door and, after she jumped off the porch, he fired the gun \u201cstraight out the door,\u201d striking the truck. He then walked out the door and around the corner of the house where he saw his wife duck her head behind the trailer. He again fired the gun over her head, the load striking the house. He walked to the back of the trailer where she was squatting and she began cursing him, whereupon he shook his finger at her and said, \u201cTell me why in the world I shouldn\u2019t just kill you laying right there?\u201d She grabbed the end of the shotgun with her left hand, pulled it up to her head, then placed her other hand on the gun and started kicking, breaking his little finger in two places: While trying to pull the gun away, it went off and she was killed. The only intention he had was to scare his wife and \u201cmake her do better.\u201d He wrote the note intending that his wife should find it. He was very intoxicated at the time but was not so drunk on this occasion that he didn\u2019t know what he was doing.\nThe court limited the jury in its deliberations to one of three verdicts, to wit: Murder in the first degree (with or without recommendation as to punishment), murder in the second degree, or not guilty. Defendant was convicted of murder in the second degree and sentenced to a term of twenty-five years in prison. He appealed to the Court of Appeals, and the case was transferred to the Supreme Court for initial review pursuant to the Court\u2019s general order dated 31 July 1970. Errors assigned will be noted in the opinion.\nWallace C. Harrelson, Public Defender, Eighteenth Judicial District, for defendant appellant.\nRobert Morgan, Attorney General; Sidney S. Eagles, Jr., Assistant Attorney General; Russell G. Walker, Jr., Staff Attorney, for the State of North Carolina." }, "file_name": "0676-01", "first_page_order": 704, "last_page_order": 717 }