
185 S.E.2d 129 (1971)
279 N.C. 676
STATE of North Carolina
v.
Albert Lee WRENN.
No. 27.
Supreme Court of North Carolina.
December 15, 1971.
*132 Wallace C. Harrelson, Public Defender, Eighteenth Judicial District, for defendant appellant.
Robert Morgan, Atty. Gen., Sidney S. Eagles, Jr., Asst. Atty. Gen., Russell G. Walker, Jr., Staff Atty., Raleigh, for the State.
HUSKINS, Justice:
Defendant assigns as error the failure of the trial court to submit manslaughter as a permissible verdict.
Where, under the 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 evidence presented to the jury under proper instructions. State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). Erroneous failure to submit the question of defendant's guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the court's charge. State v. Davis, 242 N.C. 476, 87 S.E.2d 906 (1955). This principle applies, however, only in those cases where there is evidence of guilt of the lesser degree. State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). If all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree, the principle does not apply and the court correctly refuses to charge on the unsupported lesser degree. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971), and cases cited. See State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969), for discussion of the law in this and other jurisdictions when there is evidence sufficient to require submission of manslaughter but the jury convicts of murder in the first degree.
Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. § 14-17; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950). Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967). 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. State v. Foust, supra; State v. Honeycutt, 250 N.C. 229, 108 S.E.2d 485 (1959); State v. Satterfield, 198 N.C. 682, 153 S.E. 155 (1930).
If the State has satisfied the jury beyond a reasonable doubt that defendant intentionally shot his wife with a shotgun and thereby proximately caused her death, *133 "two presumptions arise: (1) That the killing was unlawful, and (2) that it was done with malice; and, nothing else appearing, the defendant would be guilty of murder in the second degree." State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968). Justice Bobbitt (now Chief Justice) accurately analyzed these principles in State v. Gordon, 241 N.C. 356, 85 S.E.2d 322 (1955), as follows:
"When the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and that an unlawful killing with malice is murder in the second degree. In State v. Gregory, 203 N.C. 528, 166 S.E. 387 [1932], where the defense was that an accidental discharge of the shotgun caused the death of the deceased, it was stated that the presumptions arise only when there is an intentional killing with a deadly weapon; and since the Gregory case it has been often stated that these presumptions arise only when there is an intentional killing with a deadly weapon. But the expression, intentional killing, is not used in the sense that a specific intent to kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. [Citations omitted] A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumption.. . . The presumptions do not arise if an instrument, which is per se or may be a deadly weapon, is not intentionally used as a weapon, e. g., from an accidental discharge of a shotgun."
Here, the presumptions arise if the jury finds, under proper instructions, that defendant intentionally shot his wife and thereby caused her death. Conversely, they do not arise if the jury finds the shotgun accidentally discharged, resulting in her death. Defendant's assertion that the killing of his wife with a deadly weapon was accidental is not an affirmative defense which shifts the burden of proof to him to exculpate himself from a charge of murder. On the contrary, it is merely a denial that the defendant has committed the crime, and the burden remains on the State to prove a homicide resulting from the intentional use of a deadly weapon before any presumption arises against the defendant. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965). Accord, State v. Williams, 235 N.C. 752, 71 S.E.2d 138 (1952).
Although the State's evidence tends to show an intentional killing with malice and with premeditation and deliberation, defendant's evidence is to the effect that he only intended to scare his wife and had no intention of killing her; that in the scuffle between the parties the shotgun went off accidentally. In this setting, and with credibility a matter for the jury, the court should have submitted involuntary manslaughter with appropriate instructions. "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." State v. Foust, supra (258 N.C. 453, 128 S.E.2d 889). As it relates to involuntary manslaughter, intent is not an issue. The crux of that crime is whether an accused unintentionally killed his victim by a wanton, reckless, culpable use of a firearm or other deadly weapon. State v. Phillips, supra (264 N.C. 508, 142 S.E.2d 337). Accord, State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963); State v. *134 Griffin, 273 N.C. 333, 159 S.E.2d 889 (1968).
Since the evidence offered by defendant, if believed by the jury, is sufficient to support a verdict of involuntary manslaughter, which is a lesser degree of the crime charged in the bill of indictment, the court erred in excluding it from the list of permissible verdicts. This error entitles defendant to a new trial.
Discussion of the remaining assignments of error is deemed unnecessary. However, it is not amiss to call attention to the fact that the use of the phrase `natural and probable result" in homicide charges has been expressly disapproved. "The crucial question is whether a wound inflicted by an unlawful assault proximately caused the deathnot whether death was a natural and probable result of such a wound and should have been foreseen. Foreseeability is not an element of proximate cause in a homicide case where an intentionally inflicted wound caused the victim's death." State v. Woods, 278 N.C. 210, 219, 179 S.E.2d 358, 363 (1971).
New trial.
SHARP, Justice (dissenting):
As stated in the majority opinion, while defendant was convicted of second-degree murder, the State's evidence makes out a case of murder in the first degree. Concededly, if there is any evidence which tends to reduce the crime to manslaughter, defendant is entitled to have this issue submitted to the jury upon a proper charge. State v. Merrick, 171 N.C. 788, 88 S.E. 501.
Defendant's version of the homicide and the events preceding it, except when quoted, are summarized as follows:
The deceased, defendant's wife and the mother of his five children, had been carrying on an illicit love affair with one Bob Dalton. On the afternoon before her death defendant accused her of it, and she taunted him with his stupidity for not having discovered it earlier. He ordered her to leave in these words: "Woman, you'd better not be here when I get back or you're going to be a dead woman." At the time he said it, however, he did not mean it.
Deceased went to the home of her married daughter, taking with her the two youngest children, Diane and Arnold. That evening defendant brought the children home. Later that night he decided he could not afford a baby sitter and he would make his wife give up her job, stay at home, and care for the children. He returned to his daughter's and made his wife come back. He told her he "wasn't sleeping with her any more," and made her get in bed with the little girl. When he awakened the next morning his wife was gone.
After two drinks he decided that the only thing he could do about the situation was to give his wife "a good scaring." Thereupon he wrote the following note: "I can't live with a woman that does me like she does so I'll end it all. Please you or all (the next word is illegible) to take what I'm going to do so bury us together." Defendant placed this note on the couch, got his shotgun, and put four shells in it.
Defendant was sitting on the couch with the gun beside him when his wife, preceded by Diane and Arnold, came in the front door about thirty minutes later. Defendant asked her where she had been. She replied that it was none of his damn business. He said he was going to make it some of his business and reached back for the shotgun. She ran out of the front door and jumped off the porch. With the intention of scaring her he fired straight out the door by which she had left. The shot hit his truck. She ran around the corner of the house to hide behind a trailer. When she raised her head he pointed the shotgun at her. She ducked; he threw up the gun and fired. This shot hit the side of the house. He then walked around to the back of the trailer "where she was squatting down." She "let into cussing" him. He pushed her over, shook his finger at her and said, "Tell me why in the world I shouldn't just kill you laying right there?" *135 Defendant's version of what happened after he said that is quoted verbatim as follows:
"She reached with her left hand and got the end of my shotgun and pulled it up to her head like that, and got it with the other hand like that, and that's when she started kicking at me. I was trying to pull it away from her and that's when it went was to scare my wife and make her do better. . . . When I shot her in the head, she was lying on the right side with her two hands on the end of the gun barrel.. . .
"I wasn't so drunk I didn't know what I was doing. I knew what I was doing.. . .
"That's what I've told; that I wrote this note and armed myself with the shotgun and went out to where my wife was and I'm telling this jury that she brought it all on herself and she is the one that put the gun up to her head. I had the gun in my hand at the time it went off.
"I don't think I had my hand on the trigger when it fired and blew her head off. I had my right hand like this, and I said, `Tell me why I shouldn't kill you right here,' and that's when she grabbed that gun and started kicking. I grabbed back with the gun to pull it away. She did have both hands on the barrel. She did not have her hands on the trigger at all. I don't remember having my hand on the trigger when it fired and killed her. I was trying to get the gun away from her."
At the time of the shooting defendant's twelve-year-old son, Arnold and his little girl, Diane, were at the house witnessing these events.
The majority decision is that the foregoing testimony, if the jury should believe it, would support a verdict of involuntary manslaughter and that defendant is entitled to a new trial because the judge excluded it from the list of permissible verdicts. In my view, evidence of manslaughter is lacking, and defendant is guilty of murder in the second degree upon his own statement.
The distinction between murder in the second degree and manslaughter is the presence or absence of malice, express or implied. Murder in the second degree is the unlawful killing of another with malice but without premeditation and deliberation. Manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Downey, 253 N.C. 348, 353, 117 S.E.2d 39, 43.
Malice has many definitions. To the layman it means hatred, ill will or malevolence toward a particular individual. To be sure, a person in such a state of mind or harboring such emotions has actual or particular malice. State v. Benson, 183 N.C. 795, 111 S.E. 869. In a legal sense, however, malice is not restricted to spite or enmity toward a particular person. It also denotes a wrongful act intentionally done without just cause or excuse; "whatever is done `with a willful disregard of the rights of others, whether it be to compass some unlawful end, or some lawful end by unlawful means constitutes legal malice.'" State v. Knotts, 168 N.C. 173, 182-183, 83 S.E. 972, 976. It comprehends not only particular animosity "but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person." 21 A. & E. 133 (2d Edition 1902). Accord, State v. Long, 117 N.C. 791, 798-799, 23 S.E. 431.
This Court has said that "[m]alice does not necessarily mean an actual intent to take human life. It may be inferential or implied, instead of positive, as when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life." State v. Trott, 190 N.C. 674, 679, 130 S.E. 627, 629; State v. Lilliston, 141 N.C. 857, 859, 54 S.E. 427. In such a situation "the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist." 1 Wharton, Criminal Law and Procedure § 245 (Anderson, 1957).
*136 Manslaughter is of two typesvoluntary and involuntary. Instances of voluntary manslaughter are (1) a killing by reason of anger suddenly aroused by provocation which the law deems adequate to dethrone reason temporarily and thus to displace malice; and (2) a killing resulting from the use of excessive force in the exercise of the right of self-defense. State v. Woods, 278 N.C. 210, 179 S.E.2d 358; State v. Marshall, 208 N.C. 127, 179 S.E. 427; State v. Merrick, supra; State v. Baldwin, 152 N.C. 822, 68 S.E. 148. Thus "under given conditions, this crime may be established, though the killing has been both unlawful and intentional." State v. Baldwin, supra at 829, 68 S.E. at 151.
Clearly the evidence in this case does not justify a charge upon voluntary manslaughter. Defendant makes no contention that he shot his wife in the heat of passion or in self-defense. By his testimony the discharge of the gun was not intentional.
Involuntary manslaughter is the unintentional killing of a human being without either express or implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence. State v. Foust, 258 N.C. 453, 128 S.E.2d 889; State v. Honeycutt, 250 N.C. 229, 108 S.E.2d 485; State v. Satterfield, 198 N.C. 682, 153 S.E. 155. In Foust, it is said that ordinarily an unintentional homicide resulting from the 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." Id. 258 N.C. at 459, 128 S.E.2d at 893. (Emphasis added.) When the circumstances do show a heart devoid of a sense of social duty, the homicide cannot be involuntary manslaughter.
Defendant's appeal, and the majority decision that he is entitled to have the issue of involuntary manslaughter submitted to the jury, are based upon defendant's testimony. He asserts that he did not intend to shoot his wife; that his sole purpose was to give her "a good scaring." Conceding the truth of defendant's testimony that he did not intentionally fire the gun, still his admitted conduct was so wanton and reckless of consequences, and so naturally dangerous to human life, that the law will imply malice from it. In determining the degree of homicide, the events immediately preceding the killing may not be disassociated from the actual shooting.
First, defendant shot straight out the door through which his wife had fled when she saw him reach for the gun. Then he pursued her and, discovering her behind a trailer, he pointed the gun at her, a violation of G.S. § 14-34. When she ducked he threw up the gun and fired a second shot, after which he went to where she was "squatting" and pushed her to the ground. Standing over her, gun in hand, he inquired why he shouldn't kill her "laying right there." And "that's when she grabbed the gun and started kicking."
Surely she had every reason to believe that defendant intended to kill her. He should have expected her to grab the barrel of the gun in an attempt to divert it, the only defensive move she could have made as she lay on the ground at his feet. Certainly he should have known that the gun was likely to discharge in any such struggle for its possession.
It would defy not only the legal definitions but also common sense for the law to allow defendant, under the circumstances here disclosed, to say that, because the gun fired while he was trying to get it away from the woman he had threatened to kill and who obviously thought he meant to kill her, the shooting was unintentional and his conduct not malicious. His own statement precludes any disclaimer of malice and convicts him of murder in the second degree.
One who is an aggressor, or who enters a fight voluntarily without lawful excuse, may not plead self-defense when he slays his adversary. State v. Randolph, 228 N.C. *137 228, 45 S.E.2d 132. Similarly, one who engages in a struggle over a gun with another, whom he has threatened to kill with it, should not be heard to say that the killing was unintentional when the gun is discharged in the fracas.
Defendant's acts, naturally dangerous to human life and evidencing a callous recklessness, establish malice as a matter of law, in my view. That he would do such deeds in the presence of his two young children is a further manifestation of a "heart devoid of a sense of social duty." My vote is to uphold the trial below.
