State v. Mickle

Ness, Justice:

Appellant was convicted of voluntary manslaughter in the death of her husband and sentenced to ten years imprisonment. We affirm.

Robert Mickle died from a shotgun wound in his chest admittedly inflicted by appellant following an argument in their home. At trial, appellant asserted self-defense.

Initially appellant contends the trial judge erred in refusing to grant her motion for a directed verdict of acquittal. In particular, appellant argues that other than her inculpatory statement, there was no proof that the death of her husband resulted from the criminal agency of another person. This is without merit.

In determining whether a motion for directed verdict of not guilty should be granted in a criminal case, the evidence and the reasonable inferences to be

drawn therefrom must be viewed in the light most favorable to the State. State v. Bell, 263 S. C. 239, 209 S. E. (2d) 890 (1974); State v. Arnold, 266 S. C. 153, 221 S. E. (2d) 867 (1976).

Here, there was evidence that appellant and her husband were arguing earlier that day and that following the incident, she drove to a friend’s house and stated she shot her husband. A chemist testified that the lack of gun powder residue on the deceased’s shirt negated the possibility of suicide. A firearms expert testified that firing the .12 gauge shotgun would require two actions: the cocking of the hammer and the pulling of the trigger.

This case is analogous to our recent decision in State v. Kahan, 268 S. C. 240, 233 S. E. (2d) 293 (1977), where the defendant was convicted of voluntary manslaughter in the death of his wife. As here, the victim died of a single bullet wound to the chest and the couple were alone in the *73house at the time of the incident. There was testimony that the couple had been seen arguing at a party a few hours earlier. While noting that the evidence against Kahan was purely circumstantial, we held the case was properly submitted to the jury. State v. Collington, 259 S. C. 446, 192 S. E. (2d) 856 (1972).

Similarly here, we conclude there was sufficient evidence that the victim’s death was caused by the criminal agency of appellant. In view of the circumstantial evidence supporting the State’s case, a directed verdict of acquittal would have been improper.

Appellant next asserts the trial court erred in refusing to charge involuntary manslaughter. We disagree.

It is only necessary to'charge a lesser included offense when there is evidence tending to show that only such lesser crime was committed. State v. Funchess, 267 S. C. 427, 229 S. E. (2d) 331 (1976).

Appellant conceded at trial that the shooting was intentional:

“Q. And when you shot did you intend to kill him?

“A. No.

“Q. When you shot the gun what was your intention?

“A. Stopping him.” (Tr. p. 92).

We conclude the trial judge properly held that the question for the jury was whether appellant was guilty of voluntary manslaughter or not guilty because she acted in self-defense. State v. Funchess, supra. The facts of this case do not support a charge of involuntary' manslaughter and the trial court correctly declined to so instruct the jury.

Affirmed.

Lewis, C. J., and Littlejohn, J. ,concur. Rhodes and Gregory, JJ.,'dissent.