dissenting.
I respectfully dissent because I firmly believe that the decision in this case is controlled by the rule as set forth in State v. Vestal, 283 N.C. 249, 195 S.E. 2d 297, cert. denied, 414 U.S. 874 (1973), and not as it is set forth and interpreted in the majority opinion.
The majority states that second degree murder and voluntary manslaughter are intentional homicides and that involuntary manslaughter is an unintentional homicide committed in a criminally negligent way. The majority then holds that the trial judge incorrectly defined an intentional killing for second degree murder and voluntary manslaughter as requiring an actual or specific intent to kill so that if the jury did not believe that the defendant had a specific intent to kill, they could have erroneously returned a verdict of the unintentional homicide, involuntary manslaughter. I do not read the instruction given the jury in this case as having required a specific intent to kill.
The jury was instructed that,
“Second degree murder is defined as the unlawful killing of a human being, that is an intentional killing of a human being and with malice, you must have unlawful killing. It *169must be intentional as I have defined intent to you, and it must be accomplished with malice. The State must show those elements.
Now voluntary manslaughter is the unlawful killing of a human being without malice. There need be no showing of malice. Voluntary manslaughter, the State must show intent, must be an intentional killing, but without malice.
Now involuntary manslaughter is the unintentional killing of a human being, by an act done in a criminally negligent way.” [Emphasis added.]
The trial judge had already correctly defined intentional killing earlier in his instructions.
Even in the portion of the instructions singled out and quoted in the majority opinion, I do not find that the trial judge required a specific intent to kill. The jury was instructed that,
“Voluntary manslaughter, the State must show intent, must be an intentional killing, but without malice.
Now involuntary manslaughter is the unintentional killing of a human being, by an act done in a criminally negligent way.
Second degree murder is the unlawful killing of a human being, that is an intentional killing, with malice.” [Emphasis added.]
From the context of all of the instructions read as a whole, I believe that the jury was fully and adequately instructed on the law regarding second degree murder, voluntary manslaughter and involuntary manslaughter. The trial judge was referring to “intentional killing” in the same manner that the majority did in its opinion and was not erroneously requiring a specific intent to kill.
Furthermore, the majority holds that under the trial judge’s instructions the jury could have convicted the defendant of involuntary manslaughter even if it believed that defendant killed in self-defense or defense of a family member since those defenses were submitted only as defenses to an intentional killing (second degree murder and voluntary manslaughter) and not as defenses to an unintentional killing (involuntary manslaughter). To so hold *170the majority must have simply ignored the instructions on self-defense and defense of a family member that were given to the jury in this case.
The jury was instructed that,
“And a killing, ladies and gentlemen, would, be excused entirely on the ground of self-defense, or upon the ground of defense of a member of a family, if . . .
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. . . [I]f after a fair and impartial consideration of all the evidence in the case, including the evidence of self-defense, you have a reasonable doubt as to the defendant’s guilt of this offense [second degree murder], it would be your duty to give him the benefit of such doubt and return a verdict of not guilty and acquit him.
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. . . [I]f after a fair and impartial consideration of all of the evidence in the case, including the evidence with respect to self-defense or defense of a member of the family, you have a reasonable doubt as to the defendant’s guilt of this offense [voluntary manslaughter]; it would be your duty to give him the benefit of such a reasonable doubt and return a verdict of not guilty and acquit him.
Now, if you do not find the .defendant guilty, ladies and gentlemen, of the offense of voluntary manslaughter, then you would consider the question of his guilt or innocence of the offense of involuntary manslaughter.
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Now if you do not find the defendant guilty of the offense of murder in the second degree; or of voluntary manslaughter; but the State has satisfied you from the evidence beyond a reasonable doubt that the defendant did not act in self-defense; then you must determine whether or not the defendant is guilty of the offense of involuntary manslaughter.
*171. . . [I]f after a fair and impartial consideration of all the evidence in the case you have a reasonable doubt as to the defendant’s guilt of this offense [involuntary manslaughter], it would be your duty to give him the benefit of such doubt and return a verdict of not guilty and acquit him.” [Emphasis added.]
Therefore, on at least five occasions, the jury was instructed that if it believed that the defendant killed the deceased in self-defense or in defense of a family member, it was to find the defendant not guilty and acquit him. I believe that the jury was fully and completely instructed on self-defense and defense of a family member and that the burden of proof on these defenses was correctly placed on the State.
If the jury in this case had believed that defendant killed in self-defense or defense of a family member then it would have been their duty to return a verdict of not guilty. Since the jury found the defendant guilty, it obviously rejected the theories of self-defense and defense of a family member. As stated in a case regarding second degree murder, voluntary manslaughter and self-defense which I believe to be fully applicable here, it was held that,
“His plea of self-defense had been fully and fairly presented to the jury and rejected by them as untrue. What, then, was the duty of the jury, if there was no evidence of manslaughter? Clearly, under the law, they should have convicted the defendant of murder in the second degree. How, then, can the defendant, his plea of self-defense having been wholly discarded by the jury . . . reasonably complain of a charge, however erroneous in that respect, which permitted the jury to convict of a lesser degree of homicide?” State v. Quick, 150 N.C. 820, 823-24, 64 S.E. 168, 170 (1909).
It is true that there is no evidence to support a conviction of involuntary manslaughter. However, Willis Rogers, a Wake Forest policeman testified that, “I asked Jimmy Ray where Larry Caudle was and he said he didn’t know. He said he emptied his gun when he was crossing the highway. Didn’t know whether he hit him or not, but hoped ... he killed him.” This is sufficient evidence to support a conviction of second degree murder. Defendant cannot complain that he has been convicted of a lesser *172included offense unsupported by any evidence since there is sufficient evidence to support a conviction of the higher offense. State v. Vestal, supra.
Today, for the first time and without being told to what constitutional provision the error relates, we are told that Vestal is in effect but an application of the harmless error rule. The majority states that it was harmless error in Vestal for the defendant to be convicted of a lesser included offense for which there was no evidence since, in the absence of the unsupported lesser offense as an alternative, it most certainly would have returned a verdict of guilty of a higher offense. Then, in the case sub judice, the majority does not apply the harmless error test of G.S. 15A-1443(b); instead, it applies the reasonable possibility test of G.S. 15A-1443(a).
There is a difference between the two tests. Error of constitutional proportions is prejudicial unless the State can prove beyond a reasonable doubt that the error was harmless. G.S. 15A-1443(b). Errors arising other than under the Constitution are prejudicial when there is a reasonable possibility that, absent the error, a different result would have been reached at the trial. G.S. 15A-1443(a). Under this subsection the defendant has the burden of showing prejudicial error. The majority does not cite any constitutional provision to which the error of convicting defendant of an offense unsupported by any evidence relates.
In my view, Vestal states that the defendant has the burden of showing that the error is prejudicial and this he cannot do even though the offense for which he has been convicted is unsupported by any evidence, when there is sufficient evidence from which a jury could reasonably find the defendant guilty of a higher offense. In Vestal it was stated that,
“[0]ur decided cases follow the majority rule and hold that if the court charges on a lesser included offense when all the evidence tends to support a greater offense, the error is favorable to the defendant and he is without standing to challenge the verdict.
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The evidence, though circumstantial, was amply sufficient to sustain the jury’s finding that the defendant was *173responsible for the killing of Angelo S. Pennisi.” State v. Vestal, supra at 252-53, 195 S.E. 2d at 299-300. [Emphasis added.]
Likewise, in State v. Quick, supra at 824, 64 S.E. at 170 (1909) it was stated that,
“The deduction seems to us to be founded in the very logic of the law that evidence which is amply sufficient to support a conviction ‘of murder must of necessity be sufficient to sustain a conviction of manslaughter.” [Emphasis added.]
Thus, in Vestal and Quick the holdings were that there was sufficient evidence of the higher offense so that a jury could have found defendant guilty of that offense thereby making it nonprejudicial error for it to convict him of the unsupported lesser included offense. From the above, it is clear that the real issue is simply the sufficiency of the evidence to go to the jury on the higher offense. If there is sufficient evidence from which a jury could find defendant guilty of the greater offense then it is error favorable to him where he has been convicted of a lesser included offense unsupported by any evidence. It is not a question of harmless error and I disagree that there is a reasonable possibility in this case that had the error not been committed a different result would have been reached at the trial. The majority relies on two alleged erroneous areas in the jury instructions to find this reasonable possibility: (1) erroneously instructing the jury that second degree murder and voluntary manslaughter required a specific intent to kill and (2) self-defense and defense of a family member were submitted as defenses to intentional but not an unintentional homicide. For the reasons discussed above and on the record as extensively quoted above, I find no erroneous instructions.
I do not believe that the jury instructions somehow short-circuited the jury’s consideration of self-defense and defense of a family member as the majority holds. It appears that the only thing that has been short-circuited is the rule as set forth in Vestal. To this unjustifiable erosion of the rule as set forth in Vestal, I register my dissent.
Chief Justice BRANCH joins in this dissent.