STATE of North Carolina
v.
Nealy J. LESLIE.
No. 792OSC211.
Court of Appeals of North Carolina.
June 19, 1979.*636 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George J. Oliver, Raleigh, for the State.
Van Camp, Gill & Crumpler by James R. Van Camp, Southern Pines, for defendant appellant.
VAUGHN, Judge.
Defendant was indicted for the murder of his wife and convicted of voluntary manslaughter. There was ample evidence to have supported a verdict of a higher degree of homicide. We must, nevertheless, order a new trial because the jury was not properly instructed on a possible verdict of involuntary manslaughter as it related to defendant's evidence.
It is the duty of the judge to declare and explain the law arising on all of the evidence including that of the defendant even though it appears to be incredible. There was evidence which, if believed, would have permitted the jury to find that the killing was caused by defendant's culpable negligence in the handling of a loaded shotgun. Under the court's instructions, however, the jury could have returned a verdict of involuntary manslaughter only if it found that the killing proximately resulted from defendant's commission of an unlawful act not amounting to a felony.
"Involuntary manslaughter is the unlawful killing of a human being unintentionally and without malice but proximately resulting from the commission of an unlawful act not amounting to a felony, or some act done in an unlawful or culpably negligent manner . . .." State v. Williams, 231 N.C. 214, 215-16, 56 S.E.2d 574, 575 (1949). (Emphasis added.)
For the reason stated, defendant is entitled to a new trial.
New trial.
CLARK and CARLTON, JJ., concur.