STATE of North Carolina
v.
George HUGGINS.
No. 8310SC1288.
Court of Appeals of North Carolina.
November 6, 1984.*586 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Wilson Hayman, Raleigh, for the State.
Purser, Cheshire, Manning & Parker by Joseph B. Cheshire, V, and Barbara A. Smith, Raleigh, for defendant.
WELLS, Judge.
Defendant assigns error to the trial court in denying his motion to dismiss the charge of second degree murder because the evidence was insufficient and refusing to instruct the jury on the lesser included offense of involuntary manslaughter based on criminal negligence. We have reviewed defendant's assignments of error and find no error in defendant's trial.
Defendant first contends that his motion to dismiss the second degree murder charge was improperly denied. He argues that the evidence does not support the essential element of malice required in second degree murder.
The rule by which the motion to dismiss must be evaluated by the trial court is well settled. It is:
The question for the court in ruling upon defendant's motion for dismissal is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If substantial evidence of both of the above has been presented at trial, the motion is properly denied. ... In considering a motion to dismiss, the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom.... Contradictions and discrepancies in the evidence are strictly for the jury to decide. ... *587 State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983) (citations omitted).
The court must also consider defendant's evidence which explains or clarifies that offered by the state. State v. Blizzard, 280 N.C. 11, 184 S.E.2d 851 (1971); State v. Bruton, 264 N.C. 488, 142 S.E.2d 169 (1965). It must consider defendant's evidence which negates an inference of guilt if it is consistent with the state's evidence. State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983).
Second degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). Malice may be either express or implied. Id. It may be implied when there is:
[A]ny 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 may be no intention to injure a particular person" 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.
State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978) (quoting Sharp, C.J., dissenting in State v. Wrenn, supra.).
Applying the above rules to this case, we hold that there was ample evidence to support the trial court submitting second degree murder to the jury and to support defendant's conviction. Defendant, a healthy adult male, admitted intentionally striking the deceased, an approximately two and one-half year old child, with a clenched fist as hard as one would hit an adult. Dr. Edwards testified that this trauma, resulting in massive internal bleeding and shock, was the proximate cause of Jermaine's death. The law in this state is that ordinarily:
[I]n a fight between men, the fist ... would not ... be regarded as endangering life or limb. But it is manifest, that a wilful blow with the fist of a strong man, on the head of an infant, or the stamping on its chest, producing death, would import malice from the nature of the injury, likely to ensue.
State v. West, 51 N.C. 505 (1859); see also State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983); State v. Sallie, 13 N.C.App. 499, 186 S.E.2d 667, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972).
Defendant argues that in order to find malice there must have been a sustained attack or pattern of abuse, relying on, among others, State v. Stinson, 297 N.C. 168, 254 S.E.2d 23 (1979); State v. Smith, 61 N.C.App. 52, 300 S.E.2d 403 (1983); and State v. Sallie, supra. These cases certainly establish that a sustained attack of short duration or sustained abuse, medically denoted as "battered child syndrome," that proximately causes death support a finding of malice. These cases, however, do not establish a minimum standard by which malice must be judged. We hold that where, nothing else appearing, a mature adult intentionally inflicts a blow or blows of such force on an infant which proximately causes death, such evidence is sufficient to establish the element of malice in second degree murder. This assignment of error is overruled.
Defendant next contends that "the trial court erred in refusing to instruct the jury that they could find the defendant guilty of the lesser included offense of involuntary manslaughter if they found from the evidence that the defendant acted in a criminally negligent way and that such criminally negligent act proximately caused the victim's death." The trial court submitted to the jury the lesser included offense of involuntary manslaughter, instructing the jury:
Involuntary manslaughter is the unintentional killing of a human being by an unlawful act not amounting to a felony.
The trial court refused defendant's request that the remaining portion of the pattern jury instruction on involuntary manslaughter, *588 providing that criminal negligence resulting in death may constitute involuntary manslaughter, be submitted to the jury and criminal negligence defined.
It is well established that the trial court must instruct the jury on all lesser included offenses of the crime charged when sufficient evidence exists from which the jury could find that offense was committed. State v. Gerald, 304 N.C. 511, 284 S.E.2d 312 (1981); see also State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976).
Involuntary manslaughter has been defined as 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. Wrenn, supra, (emphasis in original); see also State v. Gerald, supra. This crime arises under facts of an "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. Wilkerson, supra. (quoting State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963)). Defendant's own testimony shows conclusively that defendant struck Jermaine intentionally, albeit out of rage or temper. Such an intentional criminal act raised no issues of criminal negligence, and thus defendant was not entitled to have the jury consider a verdict based on his negligence. See State v. Wilkerson, supra. This assignment is overruled.
No error.
ARNOLD and HILL, JJ., concur.