The defendant assigns as error the trial court’s failure to submit involuntary manslaughter as a permissible verdict. The defendant contends that his statement, “I thought the gun was empty,” particularly when coupled with other evidence in this case, is sufficient to require the question of involuntary manslaughter to be presented to the jury.
“Where, under a bill of indictment, it is permissible to convict defendant of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the *151evidence presented to the jury under proper instructions. (Citations omitted.)” State v. Wrenn, 279 N.C. 676, 681, 185 S.E. 2d 129, 182 (1971). “The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.” State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547 (1954) ; State v. Melton, 15 N.C. App. 198, 200, 189 S.E. 2d 757, 758 (1972), cert. denied 281 N.C. 762, 191 S.E. 2d 359 (1972).
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, (citations omitted), and where fatal consequences of a negligent act were not improbable under all the facts existent at the time.” State v. Williams, 231 N.C. 214, 215-16, 56 S.E. 2d 574, 574-75 (1949).
With respect to the gun and its use, defendant testified:
“[T]here was a .22 under the seat. * * * When I see the gun I jerked it up and from the side you load it you could see two bullets. I didn’t know how many it held or how many more were in it — I stuck it in my pocket and jumped out.”
“When the Trivette boy and Codger started with the tire tool I jerked the gun out then and pointed it at him and told him not to come at me with the tire tool. If he did I would shoot him. * * * I throwed it straight up in the air. Then the gun went off three or four times and snapped two or three times. I don’t know exactly how many times. * * * I thought the gun was empty. I didn’t know how many it held. I didn’t know how many times it had fired or snapped.”
“When he started at me again I pulled the trigger and when I pulled the trigger the gun snapped. He heard it snap and stopped just a second. When he seen it didn’t fire he had the tire tool in his hand when he started at me the second time.-1 pulled the trigger. The gun snapped again. He heard it snap, stopped just a second and seen it didn’t fire; started a third time; by this time he was about three feet from me, *152I guess, done up on the shoulder of the road there. Third time when he started at me, that’s when I pulled the trigger again. The gun fired and shot him in the lower part of the stomach.”
The defendant relies heavily on the following statement from State v. Foust, 258 N.C. 453, 459, 128 S.E. 2d 889, 893 (1963) :
“It 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.”
The quoted statement has no application in this case, since all of the evidence tends to show that Codger’s death was proximately caused by the intentional use of a gun by the defendant, rather than “a wanton or reckless use of firearms” as described in Foust, swpra.
In our opinion, any construction of defendant’s evidence manifests his intention to fire the gun at Codger. For defendant’s subjective self-serving declaration that he thought the gun was empty to be sufficient to require the submission of involuntary manslaughter as a permissible verdict, it must be accompanied by evidence of other facts and circumstances sufficient to raise an inference that the discharge of the firearm was in fact unintentional. The defendant’s one assignment of error is not sustained.
No error.
Judges Parker and Arnold concur.