STATE of North Carolina
v.
Council GRAHAM.
No. 7816SC285.
Court of Appeals of North Carolina.
September 19, 1978.*302 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Norman M. York, Jr., Raleigh, for the State.
Edwards & Johnston by Rudolph L. Edwards, Durham, for defendant-appellant.
MORRIS, Judge.
Defendant contends, by his fifth assignment of error, that the court erred in failing to charge the jury that they could return a verdict of guilty of involuntary manslaughter as a possible verdict. We are inclined to agree that defendant's evidence makes this instruction necessary. The State argues that the record reflects that defendant was the aggressor throughout the altercation and that, after shooting at deceased and missing him he moved closer and shot a second time, killing him. This is certainly what the State's evidence tended to show. However, the defendant testified for himself. His version was entirely different. He maintained that neither shot was fired at anybody. He said that when he fired the first time, he did not aim at anybody. As to the fatal shot, he said that as deceased was coming at him, "he throwed up the gun and it went off".
"Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. [Citations omitted.]" State v. Wrenn, 279 N.C. 676, 682, 185 S.E.2d 129, 132 (1971).
Here the defendant's testimony was, in its entirety, a version of an unintentional killing. He fired two shots, the first aimed at no one but intended to break up a fight, and the second, accidentally when "he throwed up the gun and it went off". If believed by the jury, defendant's evidence is sufficient to support a verdict of guilty of involuntary manslaughter. See State v. Davis, 15 N.C.App. 395, 190 S.E.2d 434 (1972) (where defendant testified that she and deceased were "fumbling with the gun", he tried to get it away from her, and *303 the gun "went off"); and State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1962) (where deceased grabbed a gun lying across defendant's knees, he got it away from her, she got it again near the end of the barrel, and "the gun went off").
Because the court failed to submit an issue of involuntary manslaughter to the jury, there must be a new trial.
Defendant's other assignments of error are without merit, with the exception of his first assignment of error. During his cross-examination of defendant, the district attorney put the shirt worn by defendant at the time of the incident before the defendant, handed defendant the knife, and directed defendant to try to cut the shirt. Over defendant's objection, the witness was directed to cut the shirt.
"The competency of experimental evidence depends upon its trustworthiness to aid in the proper solution of the problem in hand. [Citations omitted.] When the experiment is carried out under substantially similar circumstances to those which surrounded the original transaction, and in such a manner as to shed light on that transaction, the results may be received in evidence, although such experiment may not have been performed under precisely similar conditions as attended the original occurrence. The want of exact similarity would not perforce exclude the evidence, but would go to its weight with the jury. 1 Michie on Homicide, 832. Whether the circumstances and conditions are sufficiently similar to render the results of the experiment competent is of course a preliminary question for the court, and unless too wide of the mark, the ruling thereon will be upheld on appeal. [Citations omitted.]
"The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient'Edwards, J., in Shepherd v. State, 51 Okl.Cr. 209, 300 P. 421." State v. Phillips, 228 N.C. 595, 598, 46 S.E.2d 720, 722 (1948).
We think it obvious that this experiment fell far short of being conducted under circumstances substantially similar to those existing at the time of the incident when the defendant's shirt was allegedly cut and was thus "too wide of the mark" to be upheld on appeal.
New trial.
HEDRICK and WEBB, JJ., concur.