{
  "id": 8558004,
  "name": "STATE OF NORTH CAROLINA v. GEORGE LEE REDFERN",
  "name_abbreviation": "State v. Redfern",
  "decision_date": "1976-12-07",
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    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "STATE OF NORTH CAROLINA v. GEORGE LEE REDFERN"
    ],
    "opinions": [
      {
        "text": "BRANCH, Justice.\nDefendant\u2019s sole assignment of error attacks the failure of the trial court to charge the jury on the lesser-included offense of involuntary manslaughter.\nInvoluntary manslaughter is the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission. State v. Ward, 286 N.C. 304, 210 S.E. 2d 407.\nIt is unquestioned that the trial judge must instruct the jury as to a lesser-included offense of the crime charged, when there is evidence from which the jury could find that the defendant committed the lesser offense. State v. Wrenn, 279 N.C. 676, 185 S.E. 2d 129; State v. Jones, 264 N.C. 134, 141 S.E. 2d 27. However, when all the evidence tends to show that the accused committed the crime with which he is charged and there is no evidence of guilt of a lesser-included offense, the court correctly refuses to charge on the unsupported lesser offense. State v. Harris, 290 N.C. 681, 228 S.E. 2d 437; State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393. \u201cThe presence of such evidence is the determinative factor.\u201d State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545.\nIn this case defendant testified as follows:\n... I shot in the door three times and told him to go home. I went to sling the pistol up again and hit him up there. I fired four shots. . . . When I fired this fourth shot I was aiming in the loft. I didn\u2019t intend to hit Mr. McMillian with the fourth shot.\nDefendant contends that this evidence would have sustained a verdict of guilty of involuntary manslaughter.\nIn State v. Foust, 258 N.C. 453, 128 S.E. 2d 889, Justice Parker (later Chief Justice), speaking for this Court, stated:\nIt 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. S. v. Vines, 93 N.C. 493, 53 Am. Rep. 466; S. v. Turnage, 138 N.C. 566, 49 S.E. 913; S. v. Stitt, 146 N.C. 643, 61 S.E. 566; S. v. Bryant, 180 N.C. 690, 104 S.E. 369; S. v. Hovis, supra; 26 Am. Jur., Homicide, sec. 212; 40 C.J.S., Homicide, sec. 59. [Emphasis ours.]\nThe controlling facts in instant case are remarkably similar to those in State v. Ward, supra. In Ward Justice Moore, speaking for the Court, stated:\n. . . Clearly the evidence did not justify a charge on involuntary manslaughter. Defendant makes no contention that the gun was discharged accidentally. On the contrary she testified, \u201cI went in the back bedroom and I sat there on the bed and then I jumped right up and I run and grabbed the gun and went right in the room. I went through the bedrooms and in the living room. And that\u2019s when I fired. But I didn\u2019t want to kill him. ...\u201d (Emphasis added.) By her own statement defendant intentionally discharged the gun under circumstances naturally dangerous to human life.\nSee also State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322.\nHere all the evidence, including defendant\u2019s own testimony, shows that deceased was fatally wounded when defendant intentionally discharged his pistol under circumstances naturally dangerous to human life. There was no evidence of an accidental discharge of the weapon. Thus, the trial judge did not commit error in failing to charge on the lesser-included offense of involuntary manslaughter since there was no evidence to support such a verdict.\nNo error.",
        "type": "majority",
        "author": "BRANCH, Justice."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Rebecca R. Bevacqua, for the State.",
      "R. Wayne Pickett, attorney for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. GEORGE LEE REDFERN\nNo. 116\n(Filed 7 December 1976)\n1. Homicide \u00a7 6 \u2014 involuntary manslaughter defined\nInvoluntary manslaughter is the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.\n2. Criminal Law \u00a7 115\u2014 necessity for charging on lesser-included offense\nThe trial judge must instruct the jury as to a lesser-included offense of the crime charged when there is evidence from which the jury could find that defendant committed the lesser offense; however, when all the evidence tends to show that the accused committed the crime charged and there is no evidence of guilt of a lesser-included offense, the court correctly refuses to charge on the unsupported lesser offense.\n3. Homicide \u00a7 30\u2014 second degree murder case \u2014 failure to charge on involuntary manslaughter\nThe trial court in a prosecution for second degree murder did not err in failing to charge on the lesser-included offense of involuntary manslaughter where\" all the evidence, including defendant\u2019s' own testimony, showed that deceased was fatally wounded-when defendant intentionally discharged his pistol under circumstances naturally dangerous to human life, although defendant testified that he did not intend to hit deceased when he shot.'\nAppeal by defendant from Albright, J., at the 21 April 1976 Session of Cabarr\u00fas Superior Court.\nDefendant was charged in a bill of indictment with first-degree murder. The State elected to proceed on the lesser-included offense of second-degree murder.\nThe State\u2019s evidence tended to show that on the night of 17 January 1976 three persons, including Charles McMillian, were seated in the kitchen of defendant\u2019s home. Defendant, who was in the bedroom, turned off all the lights in the house for a brief moment. When defendant returned to the kitchen, Mc-Millian asked him why he had turned off the lights. Defendant responded, \u201cThis is my goddam house,\u201d and thereupon shot McMillian with a .38 caliber pistol. McMillian was unarmed and had not threatened defendant. McMillian died as a result of the single bullet wound inflicted by defendant\u2019s pistol.\nDefendant testified that McMillian had engaged in a fight with one of the visitors in his home and he had repeatedly asked McMillian to leave the premises. After an ensuing argument, defendant went to his bedroom and obtained his pistol. Upon his return to the kitchen McMillian started toward him with his hands in his pockets. Defendant fired three warning shots into the door while McMillian was about six feet from him. The fourth shot, which he also intended as a warning shot, struck and killed McMillian. McMillian was about three or four feet from defendant when the fatal shot was fired.\nThe trial judge charged the jury as to the possible verdicts of guilty of second-degree murder, guilty of voluntary manslaughter, or not guilty. Upon a verdict of guilty of second-degree murder, defendant was sentenced to life imprisonment.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Rebecca R. Bevacqua, for the State.\nR. Wayne Pickett, attorney for defendant appellant."
  },
  "file_name": "0319-01",
  "first_page_order": 343,
  "last_page_order": 346
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