This evidence may be considered on the question of culpable negligence, but in our opinion it is not sufficient to support the State's contention that the defendant intentionally pointed his pistol at the deceased and then pulled the trigger, and we so hold. Even so, the case should be submitted to the jury on proper instructions for its determination as to whether or not the death of the deceased was proximately caused by the culpable negligence of the defendant. S. v. Limerick, 146 N.C. 649, 61 S.E. 568; S. v. Turnage, 138 N.C. 566, 49 S.E. 913; S. v. Trollinger, 162 N.C. 618, 77 S.E. 957; S. v. Stansell, 203 N.C. 69, 164 S.E. 580. In the case of S. v. Turnage, supra, the defendant had been convicted of involuntary manslaughter.
We find no error in either of these particulars. This case differs from S. v. Turnage, 138 N.C. 566, for the judge here left the contention of the defendant that the gun was accidentally discharged to the jury, as appears in the charge as set out in the record, but in other respects the law in that case applies to this. At common law and by Rev. 3632, one who points a loaded gun at another, though without intention of discharging it, if the gun goes off accidentally and kills, it is manslaughter. S. v. Stitt, 146 N.C. 643.
We have so held at the present term, in S. v. Stitt, and other authorities are to like effect. S. v. Turnage, 138 N.C. 566; Commonwealth v. Matthews, 89 Ky. 393. But neither of these positions necessarily or as a matter of law arises from the testimony, and the question of the prisoner's guilt or innocence must be left for the jury to determine on the facts as they shall find them. S. v. Turnage, supra."
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. S. v. Vines, 93 N.C. 493, 53 Am.Rep. 466; S. v. Turnage, 138 N.C. 566, 49 S.E. 913; S. v. Stitt, 146 N.C. 643, 61 S.E. 566; S. v. Bryant, 180 N.C. 690, 104 S.E. 369; S. v. Hovis, supra; 26 Am. Jur., Homicide, sec. 212; 40 C.J.S., Homicide, sec. 59. [Emphasis ours.]
When the State undertakes a prosecution for unlawful homicide, it assumes the burden of producing evidence sufficient to prove that the deceased died as the result of a criminal act committed by the defendant. State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349; State v. Palmer, 230 N.C. 205, 52 S.E.2d 908. Any unjustifiable and reckless or wanton use of a firearm which jeopardizes the safety of another constitutes a criminal act, State v. Turnage, 138 N.C. 566, 49 S.E. 913; and, if an unintentional killing results, it is an unlawful homicide. State v. Brooks, 260 N.C. 186, 132 S.E.2d 354; State v. Foust, 258 N.C. 453, 128 S.E.2d 889; State v. Hovis, 233 N.C. 359, 64 S.E.2d 564.
However, if the inadvertent violation of a prohibitory statute or ordinance be accompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others, then such negligence, if injury or death proximately ensue, would be culpable and the actor guilty of an assault or manslaughter, and under some circumstances of murder. S. v. Trott, supra; S. v. Sudderth, supra; S. v. Trollinger, 162 N.C. 619, 77 S.E. 957; S. v. Limerick, 146 N.C. 649, 61 S.E. 567; S. v. Stitt, 146 N.C. 643, 61 S.E. 566; S. v. Turnage, 138 N.C. 566, 49 S.E. 913."
Any careless and reckless use of a loaded gun which jeopardizes the safety of another is unlawful, and if death results therefrom it is an unlawful homicide. State v. Turnage, 138 N.C. 566, 49 S.E. 913; State v. Hovis, 233 N.C. 359, 64 S.E.2d 564. For the most recent discussion of this rule of law see the opinion of Parker, J. in State v. Foust, 258 N.C. 453, 128 S.E.2d 889.
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. S. v. Vines, 93 N.C. 493, 53 Am. Rep. 466; S. v. Turnage, 138 N.C. 566, 49 S.E. 913; S. v. Stitt, 146 N.C. 643, 61 S.E. 566; S. v. Bryant, 180 N.C. 690, 104 S.E. 369; S. v. Hovis, supra; 26 Am. Jur., Homicide, sec. 212; 40 C.J.S., Homicide, sec. 59. Considering the State's evidence in the light most favorable to it, it shows that defendant, carrying a 22-410 combination rifle and shotgun with both barrels loaded, went to the little bed or cot where Sylvia was asleep, waked her up, had the gun with him by the little bed, that he and Sylvia began pranking with this gun and the shotgun barrel fired killing Sylvia.
In S. v. Hovis, 233 N.C. 359, 64 S.E.2d 564, it is stated that "Involuntary manslaughter has been defined to be `where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part not amounting to a felony, or from a lawful act negligently done.'" 1 Wharton Cr. Law, Sec. 305; S. v. Williams, 231 N.C. 214 56 S.E.2d 574; S. v. Stansell, 203 N.C. 69, 164 S.E. 580; S. v. Turnage, 138 N.C. 566, 49 S.E. 913. In the light of this principle applied to the evidence shown in in the record, and of the theory of the trial below, error is not made to appear in the instruction here considered.
"However, if the inadvertent violation of a prohibitory statute or ordinance be accompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others, then such negligence, if injury or death proximately ensue, would be culpable and the actor guilty of an assault or manslaughter, and under some circumstances of murder. S. v. Trott, supra ( 190 N.C. 674, 130 S.E. 627); S. v. Sudderth, supra ( 184 N.C. 753, 114 S.E. 828); S. v. Trollinger, 162 N.C. 618, 77 S.E. 957; S. v. Limerick, 146 N.C. 649, 61 S.E. 567; S. v. Stitt, 146 N.C. 643, 61 S.E. 566; S. v. Turnage, 138 N.C. 566, 49 S.E. 913."