{ "id": 8566309, "name": "STATE OF NORTH CAROLINA v. KENNETH D. WILKERSON", "name_abbreviation": "State v. Wilkerson", "decision_date": "1978-10-17", "docket_number": "No. 84", "first_page": "559", "last_page": "583", "citations": [ { "type": "official", "cite": "295 N.C. 559" } ], "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": "159 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574962 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0208-01" ] }, { "cite": "188 S.E. 2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574848 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0287-01" ] }, { "cite": "144 S.E. 2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576101 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0534-01" ] }, { "cite": "231 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559009 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0700-01" ] }, { "cite": "232 S.E. 2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "478" } ], "opinion_index": 0 }, { "cite": "32 N.C. 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KENNETH D. WILKERSON" ], "opinions": [ { "text": "EXUM, Justice.\nThe homicide victim in this tragic affair was Kessler Wilkerson, the two-year-old son of defendant and his wife, Nancy. The state\u2019s evidence tended to show, and the jury apparently believed, that the child\u2019s death was the result of physical abuse inflicted upon him by his father. On his appeal defendant contends the trial court erred in (1) admitting into evidence expert medical opinion having to do with the \u201cbattered child\u201d syndrome; (2) permitting cross-examination of defendant\u2019s mother as to acts of misconduct earlier committed by defendant; and (3) improperly instructing the jury, principally by failing properly to define the crimes of second degree murder, voluntary manslaughter and involuntary manslaughter. With regard to the first contention, we find no error. We agree with defendant that the cross-examination of his mother was improper; but we also conclude under the circumstances that no prejudice resulted. As to the third contention the error committed was favorable to defendant.\nThe state\u2019s evidence, in summary, is as follows: On 16 October 1976 around 10:30 a.m., neighbors heard loud sounds \u201clike something was being throwed inside the trailer\u201d coming from the Wilkersons\u2019 mobile home, the voice of a little boy crying, and defendant shouting at him to shut up. Mrs. Wilkerson appeared at the door of the trailer, said, \u201cHurry up, Kenny, hurry up,\u201d and slammed the door closed. Pursuant to a call an ambulance arrived at the Wilkerson trailer at 12:42 p.m. Defendant delivered the child\u2019s limp body to ambulance attendants and told them he had choked on some cereal, swallowed some water, and stopped breathing. Cardiopulmonary resuscitation was applied unsuccessfully en route to the hospital. The child was dead on arrival there. The emergency room physician who examined the child found no fluid in his lungs or other signs of drowning. Bruises were present on his chest, shoulders, upper arm and forearm. Upon being informed that his son was dead, defendant appeared \u201cquite calm and told his wife something to the effect that it\u2019s done, it\u2019s over, there\u2019s nothing we can do about it now.\u201d An autopsy revealed, externally, multiple bruises all over the child\u2019s body and, internally, significant bleeding and a deep laceration of the liver. Cause of death was abdominal hemorrhage from a ruptured liver.\nOther evidence for the state, consisting of defendant\u2019s pretrial statement made to investigating officers and the. testimony of other witnesses who had observed defendant in his relationship with his son, tended to show the kind of disciplinary methods defendant, customarily used with the child. According to this evidence defendant frequently kicked the child and on occasion made him stand \u201cspread eagle\u201d against a wall for long periods of time. One such occasion was 14 October 1976, two days before the boy died. Defendant at that time kicked him with such force that his chest hit the wall. One witness testified that defendant had said the little boy had no manners and that he was determined to teach him some manners and bring him up to be a man the way that \u201chis [defendant\u2019s] mother has raised him, that his mother put him through hell.\u201d When asked why he wanted to repeat his mother\u2019s treatment, defendant \u201csaid that he didn\u2019t really approve of it or like it but it made him a man, and that\u2019s the way his son was going to be.\u201d\nDefendant testified that his relationship with his son had been close. Although admitting disciplining his son and occasionally spanking him with a belt, defendant denied ever hitting or kicking him. He also denied that he was punished excessively as a child or that he ever talked with state\u2019s witnesses about his childhood. He said that on the morning of 16 October the child had wet himself on the floor. Defendant spanked him with his wife\u2019s belt and then ran some water in a tub and made him get in whereupon the child began \u201cgasping for air and choking.\u201d Defendant searched his throat for possible obstructions, patted him on his back, and applied mouth-to-mouth resuscitation, all without any success. On cross-examination defendant admitted spanking his son on 16 October \u201chard enough to make him cry as long as I beat him.\u201d\nSeveral witnesses testified that the relationship between defendant and his son was good and that they had never seen defendant abuse the child in any way. Defendant\u2019s mother testified that defendant treated his younger brothers and sisters in a kind manner while growing up in Philadelphia and that she had never beaten defendant severely or seen him abuse any child.\nDefendant first assigns as error the testimony of two medical witnesses \u2014 Dr. Casey John Jason, a pediatrician who first examined the child at the emergency room of Womack Army Hospital, and Dr. John Edward Grauerholz, who performed the autopsy. Specifically, defendant complains of Dr. Jason\u2019s testimony that the bruises he observed on the child were not \u201cthe typical bruising pattern that is normally sustained by children in [their] normal day-to-day life.\u201d Defendant likewise complains of the testimony of Dr. Grauerholz, a pathologist, who after describing at some length his findings on autopsy testified in part as follows:\n\u201cDr. GRAUERHOLZ: All right, I made a diagnosis.\nMr. GREGORY: And what was that diagnosis, Doctor?\nMr. DOWNING: Object.\nCOURT: Overruled.\nDr. Grauerholz: Battered child.\nMR. DOWNING: Move to strike.\nException. This constitutes defendant\u2019s Exception NO. 2.\nMr. GREGORY: Dr. Grauerholz, what do you mean by the term \u2018battered child\u2019?\nDr. GRAUERHOLZ: I mean a child who died as a result of multiple injuries of a non-accidental nature.\nMR. GREGORY: Can you explain what you mean by \u2018non-accidental nature\u2019?\nDR. GRAUERHOLZ: Yes. That these injuries were inflicted by someone other than the child upon the child.\nMR. DOWNING: Move to strike.\nCOURT: Denied.\nException. This constitutes defendant\u2019s Exception NO. 3.\nMR. GREGORY: Is the term \u2018battered child\u2019 a relatively new term in the field of medicine?\nMR. DOWNING: Objection.\nCOURT: Overruled.\nDr. GRAUERHOLZ: It\u2019s been around for a while. I think probably in the last ten years or so it has become very well established.\nMr. GREGORY: Dr. Grauerholz, without referring to any particular person, can you describe for us about the battered child?\nMr. DOWNING: Objection.\nCOURT: Overruled. You are seeking an explanation of the term \u2018battered child\u2019?\nMr. Gregory: Yes sir.\nCOURT: Overruled. You may give your explanation, Doctor.\nDr. GRAUERHOLZ: These are children who suffer multiple injuries inflicted by others. The injuries are multiple in terms of distribution on the body and in time of infliction in certain cases. They are seen in children who have been perhaps over-zealously disciplined or have in other ways upset or run afoul of their guardians or their caretakers or usually some adult who is in relation to the child. By \u2018relation\u2019 I mean physical relation.\nMr. DOWNING: Move to strike.\nCOURT: Denied.\nException. This constitutes defendant\u2019s Exception No. 4.\nDr. GRAUERHOLZ: They show essentially such things as abdominal injuries or fractures or other damage that is inconsistent with an accidental origin by virtue of the distribution of the injury. There are certain places where children classically do injure themselves when they fall, they run along and they fall, they bang their knees, they fall on their hands and so forth and these children, however, show injuries in noncharacteristic places, across the back, places where they could not spontaneously fall with sufficient force to produce that sort of injury, deep injuries in the abdomen, again which would necessitate a force being directed to the abdomen. One of the classic findings in a lot of these children are multiple' fractures of varying ages. The bruising I observed in the chest area of the child were those bruises were not bruises characteristic of the everyday life of a child, of being, a child from day to day and falling. In my opinion an external striking or compressive force of some sort applied to the abdomen would produce the laceration to the.liver.\nException. This constitutes defendant\u2019s Exception NO. 5.\nMr. GREGORY: My question is, without all the paraphrasing, Your Honor, under what circumstances does the battered-child syndrome occur?\nCOURT: Overruled. You may move to strike. The ruling of the Court does not foreclose your opportunity to move to strike. Go. ahead, Doctor.\nDr. GRAUERHOLZ: The syndrome usually occurs in a disciplinary situation involving the child and some guardian or custodian, a parent, a relative, a babysitter, someone who has physical custody of the child at that time. The injuries are usually inflicted as a disciplinary measure upon the child.\nMr. DOWNING: Move to strike.\nCourt: Denied.\nException. This constitutes defendant\u2019s Exception NO. 6.\nMr. GREGORY: Now when you say in disciplining the child, what are you talking about, Dr. Grauerholz?\nMr. DOWNING: Objection.\nCOURT: Overruled.\nException. This constitutes, defendant\u2019s Exception No. 7.\nDr. GRAUERHOLZ: I am talking about punishment in the sense that one might spank a child for misbehaving. In that sort of situation. A question of corporal punishment. In these cases the punishment is excessive in its result if not necessarily in its intent.\u201d\nDefendant contends that to permit Dr. Grauerholz to give an opinion .that the' child was a victim of the battered. child syndrome, to explain what this syndrome means, and \u201cto theorize . . . that the child was killed by a parent, a guardian or caretaker who used more force than was called for in a disciplinary situation\u201d was, in effect, to permit-the doctor to testify \u201cas to the ultimate fact of the defendant\u2019s guilt or innocence\u201d and therefore was improper. Defendant makes no argument in his brief to support his assignment of error with regard to Dr. Jason\u2019s testimony. We conclude that all of this testimony was properly admitted..\nDefendant relies on the principle that an expert witness should not express an opinion on the very issue to be decided by the jury and thereby invade the jury\u2019s province. As this Court has noted before, this principle \u201cis not inflexible, is subject to many exceptions, and is open to criticism.\u201d Patrick v. Treadwell, 222 N.C. 1, 4, 21 S.E. 2d 818, 821 (1942), quoted with approval in Bruce v. Flying Service, 234 N.C. 79, 66 S.E. 2d 312 (1951). \u201cIt is frequently relaxed in the admission of evidence as to ultimate facts in regard to matters of science or skill.\u201d State v. Powell, 238 N.C. 527, 530, 78 S.E. 2d 248, 251 (1953). In Powell the defendant was charged with the murder of his wife. The state\u2019s evidence tended to show that the defendant intentionally shot his wife with a pistol, the bullet having penetrated his wife\u2019s ring finger on her right hand and entered her skull, causing death. The defendant contended and testified tha,t after he and his wife had gone to bed he was awakened by someone pulling at the pistol which he had earlier placed under his pillow. When he raised up his wife \u201cwas getting hold of the pistol, he grabbed, and got hold of it, and then it fired.\u201d The state\u2019s case rested in part on crucial testimony of the physician who performed the autopsy. He testified that it was his opinion based upon his examination of the deceased that when the fatal bullet was fired her \u201chand was somewhere in front of the face in this particular area (indicating),\u201d and that it \u201cwas turned \u2014 in other words like that,-to her face (indicating).\u201d On appeal and against the defendant\u2019s contention that this testimony invaded the jury\u2019s province, this Court found no error in the admission of the testimony. Parker, J., later C.J., writing for the Court, said, 238 N.C. at 530, 78 S.E. 2d at 250-51:\n\u201cThis witness spoke from a professional and personal examination of the body of Bessie Rector Powell, and the answers, to our minds, were clearly within the domain of expert opinion. The witness had testified in minute detail as to the penetration of the bullet through the ring finger of the right hand into the skull and brain of Bessie Rector Powell, and also the powder burns on her hand and forehead. His opinion required expert skill or knowledge in the medical or pathologic field about which a person of ordinary experience would not be capable of satisfactory conclusions, unaided by expert information from one learned in the medical profession. The questions and answers are approved and upheld, we think, in S. v. Jones, 68 N.C. 443 (opinion of doctor who saw deceased as to his posture and position when shot); S. v. Fox, 197 N.C. 478, 149 S.E. 735 (opinion of doctor that deceased was lying down when he received the fatal wound); S. v. Stanley, 227 N.C. 650, 44 S.E. 2d 196 (physician testified that deceased was in a prone position when fatal injuries inflicted); McManus v. R.R., 174 N.C. 735, 94 S.E. 455 (physician testified the intestate was lying down at the time of injury); George v. R.R., 215 N.C. 773, 3 S.E. 2d 286 (similar opinion testimony as in McManus case).\"\nExpert medical opinion has been allowed on a wide range of facts, the existence or non-existence of which is ultimately to be determined by the trier of fact. State v. DeGregory, 285 N.C. 122, 203 S.E. 2d 794 (1974) (sanity of the defendant); State v. Potter, 285 N.C. 238, 204 S.E. 2d 649 (1974) (sanity of defendant and competence of defendant to stand trial); State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971) (probable date of death); State v. Knight, 247 N.C. 754, 102 S.E. 2d 259 (1958) (death caused by exertion, fear and anger, rather than blows); State v. Wilcox, 132 N.C. 1120, 44 S.E. 625 (1903) (contusion caused by blow with a blunt, covered instrument); but see State v. Griffin, 288 N.C. 437, 219 S.E. 2d 48 (1975), death penalty vacated, 428 U.S. 904 (1976) (psychiatric definition of \u201cintent\u201d properly excluded in murder case); State v. Carr, 196 N.C. 129, 144 S.E. 698 (1928) (testimony that deceased could not have fired the shot that killed him where defense was suicide was erroneously admitted). See generally 1 Stansbury\u2019s North Carolina Evidence \u00a7 135 (Brandis rev. 1973).\nWe conclude, therefore, that in determining whether expert medical opinion is to be admitted into evidence the inquiry should be not whether it invades the province of the jury, but whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact. The test is as stated in State v. Powell, supra, 238 N.C. at 530, 78 S.E. 2d at 250, whether the \u201copinion required expert skill or knowledge in the medical or pathologic field about which a person of ordinary experience would not be capable of satisfactory conclusions, unaided by expert information from one learned in the medical profession.\u201d\nThe opinions expressed by the physicians in this case fall well within the bounds of permissible medical expert testimony. The basis for Dr. Jason\u2019s opinion, that the bruises on the child\u2019s chest did not form the typical bruising pattern normally sustained by children in day to day activities, was given in his earlier testimony in which he said:\n\u201cIn my work in pediatrics I have had the occasion to work with numerous children. At Johns Hopkins I would say somewhere in the neighborhood of five hundred children total. Many times I have had occasion to observe lesions or bruises about children that have occurred in the normal course of events. A child frequently falls on his knees or bang what we call the tibial surfaces, the area underneath the knee, and, of course, bang their elbows and skin their hands and occasionally even fall and hit their heads and in that case get a bruise similar to the one that Kessler had on the front of his head.\nMr. GREGORY: Have you had a chance in your work in pediatrics to observe the chests of children?\nDR. JASON: Oh, of course, of course.\u201d\nLikewise, Dr. Grauerholz\u2019 opinion that this child was a \u201cbattered child\u201d and his explanation of that term were based on his experience as a physician and a pathologist who had at the time of the trial performed over 150 autopsies, and on the fact that the \u201cbattered child\u201d syndrome has been a recognized . medical diagnosis for over ten years. For a history of the development of this diagnosis and its ultimate recognition in the medical community see McCoid, The Battered Child and Other Assaults Upon the Family: Part One, 50 Minn. L. Rev. 1, 3-19 (1965). Dr. Grauerholz\u2019 opinion regarding the usual cause of the syndrome, again, was based on his expertise in the area and his knowledge of the subject as contained in the medical literature.\nContrary to what defendant seems to argue, neither physician testified, nor should he have been permitted to do so, that the battered child syndrome from which this victim suffered was in fact caused by any particular person or class of persons engaging in any particular activity or class of activities. Nowhere in the record did either physician express or purport to express an opinion as to defendant\u2019s guilt or innocence. On these kinds of factual questions the physicians would have been in no better position to have an opinion than the jury.\nUpholding the admission of similar testimony, the California Court of Appeals in People v. Jackson, 18 Cal. App. 3d 504, 507, 95 Cal. Rptr. 919, 921 (1971) said:\n\u201cA finding, as in this case, of the \u2018battered child syndrome\u2019 is not an opinion by the doctor as to whether any particular person has done anything, but, as this doctor indicated, \u2018it would take thousands of children to have the severity and number and degree of injuries that this child had over the span of time that we had\u2019 by accidental means. In other words, the \u2018battered child syndrome\u2019 simply indicates that a child found with the type of injuries outlined above has not suffered those injuries by accidental means. This conclusion is based upon an extensive study of the subject by medical science. The additional finding that the injuries were probably occasioned by someone who is ostensibly caring for the child is simply a conclusion based upon logic and reason. Only someone regularly \u2018caring\u2019 for the child has the continuing opportunity to inflict these types of injuries; an isolated contact with a vicious stranger would not result in this pattern of successive injuries stretching through several months.\u201d\nAs far as our research reveals, all courts which have considered the question, including our own Court of Appeals, have concluded that such expert medical testimony concerning the battered child syndrome as was offered in this case is properly admitted into evidence. State v. Periman, 32 N.C. App. 33, 230 S.E. 2d 802 (1977); State v. Loss, 295 Minn. 271, 204 N.W. 2d 404 (1973); People v. Henson, 33 N.Y. 2d 63, 304 N.E. 2d 358 (1973); State v. Best, 232 N.W. 2d 447 (S.D. 1975).\nThe cases relied on by defendant, Hill v. R.R., 186 N.C. 475, 119 S.E. 884 (1923); Mule Co. v. R.R., 160 N.C. 252, 75 S.E. 994 (1912); Summerlin v. R.R., 133 N.C. 551, 45 S.E. 898.(1903), are readily distinguishable. In each of these cases the difficulty was that the medical expert, was permitted to testify that a certain event had in fact caused the injuries complained of. The court in each case pointed out that it would have been proper to have asked the expert whether the event could or might have caused the injury, but not whether it in fact did cause it. (There may be questions of cause and effect, however, about which an expert should be permitted to give, if he has one, a positive opinion. Mann v. Transportation Co., 283 N.C. 734, 198 S.E. 2d 558 (1973).) The Court in\u2019Summerlin also relied on the rule that an expert must b\u00e1se his opinion upon f\u00e1cts within his own knowledge or upon facts put to him in a properly phrased hypothetical question.\nDefendant\u2019s first assignment of error is overruled.\nDefendant\u2019s next assignment of error relates to the district attorney\u2019s cross-examination of Mrs. Gracie Wilkerson, defendant\u2019s mother. On direct examination Mrs. Wilkerson described defendant\u2019s good relationships with th\u00e9 younger children in the family and testified that she had never seen him abuse any child. The record then reveals these pertinent portions of the cross-examination:\n\u201cMr. Gregory: Well, have you ever heard of your son being involved in a gang and abusing people?\nMr. DOWNING: Objection.\nCOURT: Overruled.\nMRS. WILKERSON: No, not really. I\u2019ve known him to be in fights with people standing around looking.\nMr. GREGORY: Yes ma\u2019am. But August 25, 1970 Mr. Wilkerson was. in and out of your home wasn\u2019t he?\nMrs. Wilkerson: Yes.\nMR. GREGORY: Have you ever heard the name Wallace Bridges?\nMe. Downing: Object.\nCOURT: Overruled.\nA. No I haven\u2019t.\nMr. GREGORY: Is it your testimony then that you have never even heard about your son participating in a gang on or about August 25, 1970 in which a boy named Wallace Bridges was shot and killed?\nMr. DOWNING: Objection. Move to strike.\nCOURT: Overruled. Motion denied.\nA. I am not aware of who Wallace Bridges is but if that\u2019s what I\u2019m thinking it is, as you know Kenneth was the only one that they, that the person, if this is correct, if it is what you are talking about, it was a handicapped boy that was shot and killed, is this what you are speaking in terms of?\nMR. GREGORY: I\u2019m speaking about a young man whose name was Wallace Bridges that was shot and killed on or about August 25, 1970.\nA. Right.\nMR. DOWNING: Objection.\nCOURT: Overruled.\nA. Kenneth was known not to be there, not by my say-so or anyone that knew Kenneth, this was the cousin to the boy that was shot and killed, he could testify to everybody but he also testified that my son was not there at the time this boy was shot and killed. If that\u2019s his name. I don\u2019t know his name. Kenneth was not too good on gangs. He always picked one boy at a time and if that boy didn\u2019t prove out to be all he thought he was he would let him go.\nMR. GREGORY: Is it your testimony then that you never even heard about Mr. Wilkerson being involved with a gang shooting on or about January 1, 1972?\nMr. DOWNING: Objection.\nCOURT: Overruled.\nMr. GREGORY: May I complete the question? In which the victim was permanently paralyzed? Is that your testimony?\nMr. Downing: Objection.\nCOURT: Overruled.\nA. Well, the victim is not permanently paralyzed and Kenneth was not involved in that particular incident. It was my son Joseph Wilkerson. On July 11, 1972 I believe Kenneth was living with my mother at that time in Philadelphia, two and a half blocks away. When he was living with my mother, if matters of serious nature occurred in his life I imagine I would have known about that.\nMR. GREGORY: Is it your testimony that you never even heard then about your son Kenneth Wilkerson being involved in a gang shooting in which a member of a rival gang was shot at?\nMr. Downing: Objection.\nCOURT: Overruled.\nA. No I don\u2019t. I don\u2019t recall at this time.\u201d\nBoth the state and defendant argue that Mrs. Wilkerson was, in part at least, a character witness for defendant. The state contends that since defendant offered her testimony to show his good character, it was entitled to cross-examine her to show his bad character. Accepting this analysis of the parties, we conclude that it was error to permit this kind of cross-examination. We hold, however, because of the answers given and the presence in the case of evidence quite persuasive of defendant\u2019s guilt, that the error was not prejudicial.\nThe controlling rules as to character evidence are summarized in State v. Chapman, 294 N.C. 407, 416, 241 S.E. 2d 667, 673 (1978), quoting State v. Green, 238 N.C. 257, 258, 77 S.E. 2d 614, 615 (1953):\n\u201cWhen a defendant introduces evidence of his good character, the State has the right to introduce evidence of his bad character, but it is error to permit the State to cross-examine the character witnesses as to particular acts of misconduct on the part of the defendant. Neither is it permissible for the State to introduce evidence of such misconduct. The general rule is that a character witness may be cross-examined as to the general reputation of the defendant as to particular vices or virtues, b\u00fat not as to specific acts of misconduct.\u201d\nDefendant\u2019s objections to the questions set out should therefore have been sustained.\nWe fail to perceive, however, any prejudice to defendant in the admission of this testimony. The witness, while admitting some knowledge of the incidents, denied defendant\u2019s involvement therein. Each denial was accompanied by a plausible exculpatory explanation of the- misconduct suggested by the district attorney\u2019s question. We are bolstered in our conclusion that no prejudice resulted because there is in this case plenary evidence strongly suggesting defendant\u2019s guilt. Where the state\u2019s contentions are so strongly supported by competent evidence, it is less likely that evidentiary errors will actually affect the verdict. State v. Knight, 282 N.C. 220, 192 S.E. 2d 283 (1972). \u201cUnless there is a reasonable possibility that the erroneously admitted evidence might have contributed to the conviction, its admission constitutes harmless error.\u201d Id. at 228, 192 S.E. 2d at 288. We find no such reasonable possibility in this case. Accordingly, this assignment of error is overruled.\nUnder his third assignment of error defendant argues a number of unrelated questions directed to the trial court\u2019s instructions to the jury. By arguing unrelated questions under one assignment of error, defendant has ignored Rule 28(b)(3) of the Rules of Appellate Procedure. Nevertheless, we have considered thoroughly each of his arguments. The first relates to the manner in which the trial judge submitted the alternative verdicts of murder in the second degree, voluntary manslaughter, involuntary manslaughter, and not guilty to the jury. Defendant contends the method adopted by the trial judge improperly conveyed his opinion to the jury \u201cthat the defendant had to be guilty of something.\u201d No authority is cited in support of his argument. We have examined these portions of the instructions and find defendant\u2019s contention without merit and undeserving of discussion.\nDefendant next contends that the instructions do not properly define the various degrees of homicide submitted to the jury. The pertinent instructions were given as follows (Those portions actually excepted to are in italics. According to the bill of indictment and the court\u2019s instructions elsewhere, Kessler Wilkerson was sometimes known as \u201cKessler Patterson.\u201d):\n\"Second degree murder may also exist where there is no intentional act where there is an act of culpable negligence which carries danger to another and the act is so reckless or wantonly done as to indicate a total disregard for human life, and death proximately results from the act. So if in this case the defendant intentionally assaulted Kessler Wilkerson with his hands, fists or feet, and used such force that under the circumstances that force was likely to cause death and that death directly and naturally and proximately resulted from the use of that force, the defendant would be guilty of murder in the second degree.\n\u201cAnd I instruct you that voluntary manslaughter differs from murder in the second degree in that malice is not an essential element of voluntary manslaughter. Voluntary manslaughter is the intentional, unlawful killing of a human being without malice and without premeditation or deliberation. I have already defined the term \u2018intentional\u2019 for you in connection with my discussion of the crime of murder in the second degree and I will not do so again here because it would simply be repetitious to do so. As in the case of murder in the second degree, it is not essential that there be a specific intent to kill. There must, however, be an intent to do an unlawful act which naturally and directly results in the death of a human being. So, if the defendant intentionally assaulted Kessler Patterson with his hands, fists or feet, but you do not find beyond a reasonable doubt that the force he used was such that it was likely to cause death under the circumstances, but that death did occur as the direct result of the use of that force, under those circumstances the defendant would be guilty of voluntary manslaughter.\nException. This constitutes defendant\u2019s Exception no. 21:\n\u201cVoluntary manslaughter requires an intentional act that directly results in death, but not such an act that under the circumstances appeared likely to cause death.\n\u201cSo I will now discuss with you the crime of involuntary manslaughter.\n\u201cI instruct you that if the defendant undertook to act in the place of a parent to Kessler Patterson and in doing so was so grossly careless and negligent in his treatment of the child as to show a wanton and reckless behavior and a total disregard for the rights and safety of the child, although his conduct was not such as to show an utter disregard for human life, and if death directly resulted from that conduct, then he would be guilty of involuntary manslaughter. Mere carelessness or negligence is not enough to carry criminal responsibility but if carelessness or negligence is accompanied by wanton or reckless behavior showing a total disregard for the rights and safety of others, it is culpable negligence, for which one may be criminally responsible.\n\u201cThe intentional violation of a statute, a law, enacted for the protection of life or limb, is culpable negligence, and if death directly results from the intentional violation of such a statute, of such a law, that is involuntary manslaughter.\n\u201cIt is the law of this state that if a person providing care for a child under sixteen years of age \u2014 that statute may have now been amended to raise it to eighteen years \u2014 inflicts physical injury on such child by other than accidental means, he is guilty of the misdemeanor of child abuse. So if in this case the defendant was providing care for Kessler Patterson, who the evidence tends to show was the child of his wife and who lived with him and his wife and who the defendant\u2019s testimony tends to show was his natural child, so if the defendant was providing care for Kessler Patterson and in doing so he intentionally inflicted injury upon that child and the child, Kessler, was under the age of sixteen years, and if his death directly resulted from that injury, the defendant under those circumstances would be guilty of involuntary manslaughter.\u201d\nException. This constitutes defendant\u2019s Exception NO. 23.\nDefendant\u2019s argument, more precisely, seems to be that the trial judge failed to distinguish properly the various degrees of homicide for the jury. Defendant argues that the definitions of second degree murder and involuntary manslaughter are \u201cvirtually synonymous.\u201d He says further that an \u201cintentional act\u201d can never be an element of involuntary manslaughter; and that insofar as the trial judge instructed that such an act could be the basis for both voluntary and involuntary manslaughter, he failed to distinguish properly between these degrees of homicide.\nTime and again this Court has had occasion to define the various degrees of homicide prevailing under the common law of our state. Repetition of these definitions must be the beginning of our analysis. We find State v. Wrenn, 279 N.C. 676, 185 S.E. 2d 129 (1971), particularly helpful. Defendant in Wrenn shot his wife to death with a shotgun. The state\u2019s evidence was sufficient to support a verdict of either first or second degree murder. These alternatives and not guilty were the only permissible verdicts given by the trial judge. The question on appeal was whether the defendant\u2019s evidence, which tended to show an accidental discharge of the gun, was sufficient if believed to support, and therefore require, an instruction on involuntary manslaughter. A majority of the Court thought that it was. Justice, now Chief Justice, Sharp disagreed and dissented. It is apparent, however, that her disagreement with the majority centered on the application of the law of homicide to the facts \u2014 not on the legal principles to be applied. Thus, both the majority and dissenting opinions are helpful elucidations of the law of homicide and directly applicable to the facts in the present case.\nJustice Huskins, writing for the majority in Wrenn, set out our time-honored definitions of homicide as follows, 279 N.C. at 681-82, 185 S.E. 2d at 132:\n\u201cMurder 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).\u201d\nJustice, now Chief Justice, Sharp pointed out in her dissent in Wrenn that the difference between second degree murder and manslaughter is that malice, express or implied, is present in the former and not in the latter. She wrote, further, 279 N.C. at 686-87, 185 S.E. 2d at 135:\n\u201cMalice 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; \u2018whatever is done \u201cwith 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.\u201d \u2019 State v. Knotts, 168 N.C. 173, 182-3, 83 S.E. 972, 976. It comprehends not only particular animosity \u2018but 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.\u2019 21 A. & E. 133 (2d Edition 1902). Accord, State v. Long, 117 N.C. 791, 798-9, 23 S.E. 431.\n\u201cThis Court has said that \u2018[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.\u2019 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 \u2018the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist.\u2019 1 Wharton, Criminal Law and Procedure \u00a7 245 (Anderson, 1957).\u201d\nThis Court has also said, \u201c[a]n intent to inflict a wound which produces a homicide is an essential element of murder in the second degree,\u201d State v. Williams, 235 N.C. 752, 753, 71 S.E. 2d 138, 139 (1952), quoted with approval in State v. Phillips, 264 N.C. 508, 513, 142 S.E. 2d 337, 340 (1965), and \u201csecond degree murder . . . imports a specific intent to do an unlawful act.\u201d State v. Benton, 276 N.C. 641, 657, 174 S.E. 2d 793, 803 (1970).\nManslaughter is of two kinds \u2014 voluntary and involuntary. Generally voluntary manslaughter occurs when one kills intentionally but does so in the heat of passion suddenly aroused by adequate provocation or in the exercise of self-defense where excessive force under the circumstances is employed or where the defendant is the aggressor bringing on the affray. Although a killing under these circumstances is both unlawful and intentional, the circumstances themselves are said to displace malice and to reduce the offense from murder to manslaughter. See generally State v. Potter, 295 N.C. 126, 244 S.E. 2d 397 (1978); State v. Ward, 286 N.C. 304, 210 S.E. 2d 407 (1974), death penalty vacated, 428 U.S. 903 (1976); State v. Wrenn, supra, 279 N.C. 676, 185 S.E. 2d 129 (Sharp, J., now C.J., dissenting).\n\u201cInvoluntary 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 \u2018in 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.\u2019 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.\u201d State v. Wrenn, supra, 279 N.C. at 687-88, 185 S.E. 2d at 136 (Sharp, J., now C.J., dissenting); (Foust was also quoted with approval on this point by the majority in Wrenn, 279 N.C. at 683, 185 S.E. 2d at 133). Culpable negligence as an element of involuntary manslaughter may also arise from the \u201cintentional, wilful or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in . . . death.\u201d State v. Cope, 204 N.C. 28, 31, 167 S.E. 456, 458 (1933); State v. Jones, 32 N.C. App. 408, 413, 232 S.E. 2d 475, 478 (1977).\nIn State v. Everhart, 291 N.C. 700, 231 S.E. 2d 604 (1977), the question before the Court was whether a mother who had dropped her infant on the floor shortly after its birth could be found guilty of involuntary manslaughter. Concluding that the evidence in the case would not support a finding of criminal responsibility the Court, in an opinion by Justice Moore, said, 291 N.C. at 702, 231 S.E. 2d at 606:\n\u201cCulpable negligence in the criminal law requires more than the negligence necessary to sustain a recovery in tort. Rather, for negligence to constitute the basis for the imposition of criminal sanctions, it must be such reckless or careless behavior that the act imports a thoughtless disregard of the consequences of the act or the act shows a heedless indifference to the rights and safety of others.\u201d\nApplying these principles to the instructions under consideration, we conclude: (1) It was error to instruct that \u201csecond-degree murder may . . . exist where there is no intentional act,\u201d but that when this expression is considered in context of the entire instruction on this point, the jury could not have been misled by it and no prejudice to defendant resulted. (2) The instructions on murder in the second degree and involuntary manslaughter are, otherwise, correctly stated and properly differentiate these crimes. (3) The instructions on voluntary manslaughter should not have been given since this offense was not supported by the evidence, but the giving of these instructions could not have prejudiced defendant.\nWhile an intent to kill is not a necessary element of second degree murder, the crime does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death. State v. Wrenn, supra, 279 N.C. 676, 185 S.E. 2d 129 (Sharp, J., now C.J., dissenting); State v. Benton, supra, 276 N.C. 641, 174 S.E. 2d 793; State v. Phillips, supra, 264 N.C. 508, 142 S.E. 2d 337; State v. Williams, supra, 235 N.C. 752, 71 S.E. 2d 138. We question the universal applicability of the statements in Williams, quoted in Phillips, that \u201can intent to inflict a wound which produces a homicide is an essential element of murder in the second degree,\u201d and in Benton that \u201csecond-degree murder . . . imports a specific intent to do an unlawful act.\u201d It is more fundamentally sound to say, as did Justice, now Chief Justice Sharp in her dissent in Wrenn, that any act evidencing \u201cwickedness 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 is sufficient to supply the malice necessary for second degree murder. Such an act will always be accompanied by a general intent to do the act itself but it need not be accompanied by a specific intent to accomplish any particular purpose or do any particular thing.\nHere, the trial judge instructed the jury that second degree murder could exist \u201cwhere there is no intentional act.\u201d This, taken out of context, is as we have shown a misstatement of the law. In context, however, the judge seems to be using this phrase in the sense of a specific intent to kill. All the evidence showed that the acts committed by defendant against the child were intentional, whatever might have been defendant\u2019s intent regarding the result of those acts. The trial judge correctly charged the jury on the necessity to find this general intent when he said in the next sentence, \u201cso if in this case the defendant intentionally assaulted Kessler Wilkerson. . . .\u201d (Emphasis supplied.) He further charged the jury that in order to return a verdict of guilty of second degree murder, it had to find \u201can act of culpable negligence which causes danger to another and the act is so recklessly or wantonly done as to indicate a total disregard for human life. . . .\u201d (Emphasis supplied.) Considered in its entirety, the instruction properly informed the jury of the elements necessary for a conviction. An act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder. State v. Wrenn, supra, 279 N.C. at 687, 185 S.E. 2d at 135 (Sharp, J., now C.J., dissenting). The jury thus could not have been misled to defendant\u2019s prejudice by the erroneous instruction on the absence of an \u201cintentional act.\u201d\nThe trial judge was correct in the distinction he drew between involuntary manslaughter and second degree murder. Both can involve an act of \u201cculpable negligence\u201d that proximately causes death. Culpable negligence, standing alone, will support at most involuntary manslaughter. When, however, as the judge here instructed, an act of culpable negligence also \u201cimports danger to another [and] is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life,\u201d it will support a conviction for second degree murder. Id., quoting State v. Trott, 190 N.C. 674, 679, 130 S.E. 627, 629 (1925).\nNext, while involuntary manslaughter imports an unintentional killing, i.e., the absence of a specific intent to kill, it is, notwithstanding defendant\u2019s argument to the contrary, accomplished by means of some intentional act. Indeed without some intentional act in the chain of causation leading to death there can be no criminal responsibility. Death under such circumstances would be the result of accident or misadventure. State v. Everhart, supra, 291 N.C. 700, 231 S.E. 2d 604; State v. Church, 265 N.C. 534, 144 S.E. 2d 624 (1965).\nAn intentional violation of some statute designed for the protection of people which proximately though unintentionally causes death can support a conviction of involuntary manslaughter. State v. Cope, supra, 204 N.C. 28, 167 S.E. 456. It is clear in this case that when the trial judge instructed the jury that if defendant while caring for the child \u201cintentionally inflicted injury upon that child . . . under the age of sixteen years, and if his death directly resulted . . . defendant . . . would be guilty of involuntary manslaughter\u201d he was referring to just such a violation of General Statute 14-318.2 which provides:\n\u201cChild abuse a general misdemeanor. \u2014(a) Any parent of a child less than 16 years of age, or any other person providing care to or supervision of such child, who inflicts physical injury, or who allows physical injury to be inflicted, or who creates or allows to be created a substantial risk of physical injury, upon or to such child by other than accidental means is guilty of the misdemeanor of child abuse.\n\u201c(b) The misdemeanor of child abuse is an offense additional to other civil and criminal provisions and is not intended to repeal or preclude any other sanctions or remedies, and is punishable as provided in G.S. 14-3(a).\u201d\nFinally, we note that the trial judge should not have instructed the jury on voluntary manslaughter. There is, in this case, no evidence to support such a verdict. There is no evidence that defendant killed under the heat of passion raised by sudden provocation and nothing that raises the issue of self-defense. Where there is no evidence of a killing under such circumstances a possible verdict of voluntary manslaughter should not be submitted. State v. Ward, supra, 286 N.C. 304, 210 S.E. 2d 407. The trial judge charged the jury that if defendant \u201cintentionally assaulted Kessler Patterson with his hands, fists or feet, but you do not find beyond a reasonable doubt that the force he used was . . . likely to cause death . . . but that death did occur as the direct result of the use of that force . . . defendant would be guilty of voluntary manslaughter.\u201d The instruction is incorrect. Such a state of facts would render defendant guilty at most of involuntary manslaughter. If the assault were committed under such circumstances as to indicate a total disregard for human life, it would support a finding of implied malice and a verdict of second degree murder, as the judge earlier so instructed and the jury apparently so found. It follows from what we have already said, however, that a mere assault which proximately results in death, but which does not indicate a total disregard for human life and is committed with no intent to kill or to inflict serious bodily injury, will support, at most, a verdict of involuntary manslaughter.\nSince defendant was convicted of second degree murder, he could not have been prejudiced by the erroneous submission of voluntary manslaughter, a lesser included offense not raised by the evidence. State v. Accor, 281 N.C. 287, 188 S.E. 2d 332 (1972); State v. Rogers, 273 N.C. 208, 159 S.E. 2d 525 (1968). If anything, the error was in defendant\u2019s favor. It gave the jury an opportunity, which legally the jury should not have had, to find defendant guilty of a lesser offense.\nNo error.\nJustice BRITT took no part in the consideration or decision of this case.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Roy A. Giles, Jr., Assistant Attorney General, for the state.", "William Wicker and Deno G. Economou, Attorneys for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH D. WILKERSON\nNo. 84\n(Filed 17 October 1978)\n1. Criminal Law \u00a7 53\u2014 expert medical testimony \u2014 test for admissibility\nIn determining whether expert medical opinion is to be admitted into evidence, the inquiry should not be whether it invades the province of the jury, but whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a- better position to have an opinion on the subject, than is the trier of fact.\n2. Criminal Law \u00a7 53.1\u2014 expert medical testimony \u2014 battered child syndrome\nIn this prosecution for the second degree murder of a two-year-old child, the trial court properly allowed a pediatrician to state his opinion that bruises on the child\u2019s chest did not form the typical bruising pattern normally sustained by children in day to day activities based on the pediatrician\u2019s observation of lesions and bruises about children which had occurred in the normal course of events. Furthermore, the court properly permitted a pathologist to give his opinion that the child was a \u201cbattered child,\u201d to explain that term, and to give his opinion that the \u201cbattered child syndrome\u201d usually results from the use of excessive force in a disciplinary situation by a parent, guardian or other custodian of the child where the pathologist\u2019s testimony was based on his experience and his knowledge of the subject as contained in medical literature.\n3. Criminal Law \u00a7 85.2\u2014 character witness \u2014 cross-examination \u2014specific acts of misconduct by defendant\nThe trial court in a homicide case erred in permitting the prosecuting attorney to cross-examine defendant\u2019s mother, who testified as a character witness for defendant, as to whether defendant had previously participated in two gang shootings, since a character witness may not be cross-examined as to specific acts of misconduct on the part of the defendant. However, defendant was not prejudiced by such error where the witness, while admitting some knowledge of the incidents, denied defendant\u2019s involvement therein and offered a plausible exculpatory explanation of the misconduct suggested by the prosecutor\u2019s questions, and where there was plenary evidence in the case strongly suggesting defendant\u2019s guilt.\n4. Criminal Law \u00a7 99.2\u2014 manner of submitting verdicts \u2014 no expression of opinion\nThe trial judge did not improperly convey his opinion to the jury that defendant had to be guilty of something by the manner in which he submitted to the jury the alternative verdicts of murder in the second degree, voluntary manslaughter, involuntary manslaughter, and not guilty.\n5. Homicide \u00a7 5\u2014 second degree murder \u2014 intent to kill \u2014 malice\nWhile an intent to kill is not a necessary element of second degree murder, the crime does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death.\n6. Homicide \u00a7 5\u2014 second degree murder \u2014 malice\nStatements in prior cases that \u201can intent to inflict a wound which produces a homicide is an essential element of murder in the second degree\u201d and that \u201csecond-degree murder imports a specific intent to do an unlawful act\u201d are not universally applicable. It is more fundamentally sound to say that any act evidencing wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there be no intention to injure a particular person, is sufficient to supply the malice necessary for second degree murder.\n7. Homicide \u00a7 26\u2014 second degree murder \u2014 no intentional act \u2014 erroneous instruction \u2014 harmless > error\nIn a prosecution for the second degree murder of defendant\u2019s two-year-old child, the jury could not have been misled to defendant\u2019s prejudice by the trial court\u2019s erroneous instruction that second degree murder could exist \u201cwhere there is no intentional act\u201d where, considered in context, it appears that the court used this phrase in the sense of a specific intent to kill; the court correctly charged the jury on the necessity to find that the acts committed by defendant against the child were intentional; and the court further correctly charged the jury that in order to return a verdict of guilty of second degree murder, it had to find \u201can act of culpable negligence which causes danger to another and the act is so recklessly or wantonly done as to indicate a total disregard for human life.\u201d\n8. Homicide \u00a7\u00a7 5, 21.7\u2014 second degree murder \u2014 malice\u2014disregard for human life\nAn act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder.\n9. Homicide \u00a7\u00a7 5, 6.1\u2014 culpable negligence \u2014second degree murder \u2014 involuntary manslaughter\nAn act of culpable negligence, standing alone, will support at most a conviction of involuntary manslaughter, but when an act of culpable negligence also imports danger to another and is done so recklessly or wantonly as to manifest depravity of mind and disregard for human life, it will support a conviction of second degree murder.\n10. Homicide \u00a7 6.1\u2014 involuntary manslaughter \u2014 intentional act\nWhile involuntary manslaughter imports an unintentional killing, i.e., the absence of a specific intent to kill, it is accomplished by means of some intentional act.\n11. Homicide \u00a7\u00a7 6.1, 27.2\u2014 involuntary manslaughter \u2014 violation of child abuse statute\nAn intentional violation of some statute designed for the protection of people which proximately though unintentionally causes death can support a conviction of involuntary manslaughter. Therefore, the trial court properly instructed the jury that defendant could be found guilty of involuntary manslaughter of his two-year-old child if the child's death resulted from defendant\u2019s intentional infliction of injuries on the child in violation of provisions of the child abuse statute, G.S. 14-318.2.\n12. Homicide \u00a7 27.1\u2014 voluntary manslaughter \u2014 intentional assault \u2014 erroneous instruction\nThe trial court erred in instructing the jury that defendant would be guilty of voluntary manslaughter if he intentionally assaulted the two-year-old victim \u201cwith his hands, fists or feet, but you do not find beyond a reasonable doubt that the force he used was . . . likely to cause death . . . but that death did occur as the direct result of the use of that force,\u201d since such a state of facts would render defendant guilty at most of involuntary manslaughter.\n13. Homicide \u00a7 32.1\u2014 submission of voluntary manslaughter \u2014 error cured by verdict\nIn this prosecution for the second degree murder of defendant\u2019s two-year-old child, the trial court erred in instructing the jury on voluntary manslaughter where there was no evidence that defendant killed under the heat of passion raised by sudden provocation and no evidence of self-defense. However, defendant was not prejudiced by the erroneous submission of voluntary manslaughter since he was convicted of second degree murder.\nJustice Britt took no part in the consideration or decision of this case.\nBEFORE Godwin, J., at the 28 February 1977 Criminal Session of CUMBERLAND Superior Court and on a bill of indictment proper in form, defendant was tried and convicted of second degree murder and sentenced to life imprisonment. He appeals under General Statute 7A-27(a). This case was argued as No. 48 at the Fall Term 1977.\nRufus L. Edmisten, Attorney General, by Roy A. Giles, Jr., Assistant Attorney General, for the state.\nWilliam Wicker and Deno G. Economou, Attorneys for defendant." }, "file_name": "0559-01", "first_page_order": 591, "last_page_order": 615 }