State v. Smith

BROCK, Judge.

Defendant assigns as error the denial of his motion for nonsuit. It is defendant’s contention that, although he fired the rifle intentionally, he did not aim it at the deceased. Clearly, the State’s evidence tends to show that defendant aimed the rifle at the car whether he intentionally aimed it at the deceased or not. Also, the State’s evidence tends to show that defendant saw someone around the old car before he fired the shot.

A rifle which fires a projectile at sufficient velocity to penetrate a bumper and fender at two hundred and thirty seven yards distance and still strike a person with sufficient force to penetrate his skull, is clearly a high-powered rifle. It seems absurd to have fired such a weapon at a mere blackbird. Defendant’s protestations now, that he had never fired the rifle before and did not know much about it, seem to emphasize a careless and reckless use of the rifle.

“Any careless and reckless use of a loaded gun which jeopardizes the safety of another is unlawful, and if death results therefrom it is an unlawful homicide.” State v. Brooks, 260 N.C. 186, 132 S.E. 2d 354. “The unlawful killing of a human being, unintentionally and without malice, proximately resulting from some act done in a culpably negligent manner, when fatal consequences were not improbable under the existing circumstances, supports a verdict of guilty of involuntary manslaughter.” State v. Curtis, 7 N.C. App. 707, 173 S.E. 2d 613.

Defendant next assigns as error that the investigating officer was allowed to testify as to statements made by defendant. Defendant contends he was not advised of his rights before making the statements.

The officer testified that when he arrived at the scene there were a lot of folks standing around. He knew defendant *739and asked him what happened. “He said he was shooting a rifle at some birds, and the bullet hit the ground, ricocheted, and hit a man. He said that prior to firing the rifle he had seen some people around the old car. He told me the rifle was a 30.06, and he went and got it for me.” The record discloses no objection to the testimony, but in any event it was a general question to determine what the officer was to investigate. Defendant was not a suspect nor was he being interrogated. Immediately thereafter, and before any interrogation, the officer testified that he advised defendant of his rights and took him to the office for further questioning. Defendant was not arrested, but, with defendant’s consent, was lodged in jail for the night for defendant’s protection. After further investigation, defendant was charged with murder and placed under arrest. The record dis-ci oses that no objection was made during the officer’s recitation of what defendant stated to him. It seems that at trial defendant was satisfied that he had been sufficiently warned of his rights. This assignment of error is overruled.

Defendant strenuously argues that a discrepancy between the officer’s notes as to what defendant stated and the officer’s testimony as to what defendant stated entitled him to a new trial. This discrepancy was fully brought out by defendant and was considered by the jury. It was for the jury to determine which version of defendant’s statements it would believe.

We have examined defendant’s remaining assignments of error and find them to be without merit. In our opinion defendant had a fair trial and the case was submitted to the jury upon appropriate principles of law.

No error.

Chief Judge Mallard and Judge Britt concur.