N.C.P.I.—Crim. 206.30A

NOTE WELL: Effective December 1, 1997, Voluntary

Manslaughter is a Class D felony. For offenses

occurring before December 1, 1997, Voluntary

Manslaughter is a Class F felony.

Refer to Punishment Chart for Homicides N.C.P.I.-Crim.

206 Series.

The defendant has been charged with second degree murder.

Under the law and the evidence in this case, it is your duty to

return one of the following verdicts:

(1) guilty of second degree murder, or

(2) guilty of voluntary manslaughter, or

(3) guilty of involuntary manslaughter, or

(4) not guilty.

Second degree murder is the unlawful killing of a human being with

malice.

Voluntary manslaughter is the unlawful killing of a human being

without malice.

Involuntary manslaughter is the unintentional killing of a human

being by an unlawful act not amounting to a felony or by an act done in a

criminally negligent way.

For you to find the defendant guilty of second degree murder, the

state must prove three things beyond a reasonable doubt:

First, that the defendant wounded the victim with a deadly weapon.

A deadly weapon is a weapon which is likely to cause death or serious

injury. In determining whether the instrument was a deadly weapon, you

should

consider the nature of the instrument, the manner in which it was used,

and the size and strength of the defendant as compared to the victim.

Second, that the defendant acted intentionally2 and with malice.

Intent is a mental attitude which is seldom provable by direct

evidence. It must ordinarily be proved by circumstances from which it may

be inferred. You arrive at the intent of a person by such just and

reasonable deductions from the circumstances proven as a reasonably

prudent person would ordinarily draw therefrom.

Malice means not only hatred, ill will, or spite, as it is ordinarily

understood-to be sure, that is malice-but [it also means that condition of

mind which prompts a person to take the life of another intentionally or

to intentionally inflict serious bodily harm which proximately results in

the another’s death, without just cause, excuse or justification.] [malice

also arises when an act which is inherently dangerous to human life is

intentionally done so recklessly and wantonly as to manifest a mind

utterly without regard for human life and social duty and deliberately bent

on mischief].3

If the State proves beyond a reasonable doubt, (or it is admitted,)4

that the defendant intentionally killed the victim with a deadly weapon or

intentionally wounded the victim with a deadly weapon that proximately

caused the victim’s death, you may infer first, that the killing was

unlawful, and second, that it was done with malice, but you are not

compelled to do so.5 You may consider this along with all other facts and

circumstances in determining whether the killing was unlawful and

whether it was done with malice. If the killing was unlawful and was

done with malice, the defendant would be guilty of second degree

murder.

And Third, the State must prove that the defendant's act was a

proximate cause of the victim's death. A proximate cause is a real cause,

a cause without which the victim's death would not have occurred, 6 and

one that a reasonably careful and prudent person could foresee would

probably produce such [injury] [damage] or some similar injurious result.

(The defendant’s act need not have been the only cause, nor the nearest

cause. It is sufficient if it occurred with some other cause acting at the

same time, which, in combination with, caused the death of the victim.)

(A child has been killed if the child was born alive, but died as a result of

injuries inflicted prior to being born alive.)7

Voluntary manslaughter is the unlawful killing of a human being

without malice. A killing is not committed with malice if the defendant

acts in the heat of passion upon adequate provocation.

The heat of passion does not mean mere anger. It means that at

the time the defendant acted, the defendant’s state of mind was so

violent as to overcome reason, so much so that the defendant could not

think to the extent necessary to form a deliberate purpose and control

the defendant’s actions. Adequate provocation may consist of anything

which has a natural tendency to produce such passion in a person of

average mind and disposition,8 and the defendant's act took place so

soon after the provocation that the passion of a person of average mind

and disposition would not have cooled.

The burden is on the State to prove beyond a reasonable doubt

that the defendant did not act in the heat of passion upon adequate

provocation, but rather that the defendant acted with malice. If the

State fails to meet this burden, the defendant can be guilty of no more

than voluntary manslaughter.

For you to find the defendant guilty of voluntary manslaughter, the

State must prove three things beyond a reasonable doubt:

First, that the defendant killed the victim by an intentional9 and

unlawful act.

And Second, that the defendant’s act was a proximate cause10 of

the victim’s death. A proximate cause is a real cause, a cause without

which the victim’s death would not have occurred.

If you do not find the defendant guilty of second degree murder or

voluntary manslaughter, you must consider whether the defendant is

guilty of involuntary manslaughter. Involuntary manslaughter is the

unintentional killing of a human being by an unlawful act not amounting

to a felony, or by an act done in a criminally negligent way.

For you to find the defendant guilty of involuntary manslaughter,

the State must prove two things beyond a reasonable doubt:

First, that the defendant acted a) [unlawfully] (or) b) [in a

criminally negligent way]. a) [The defendant's act was unlawful if (define

crime e.g. defendant recklessly discharged a gun, killing the victim).] b)

[Criminal negligence is more than mere carelessness. The defendant's

act was criminally negligent, if, judging by reasonable foresight, it was

done with such gross recklessness or carelessness as to amount to a

heedless indifference to the safety and rights of others.]

And Second, the defendant’s [unlawful] (or) [criminally negligent]

act proximately caused the victim's death.

(If the victim died by accident or misadventure, that is, without

wrongful purpose or criminal negligence on the part of the defendant, the

defendant would not be guilty. The burden of proving accident is not on

the defendant. The defendant’s assertion of accident is merely a denial

that the defendant has committed any crime. The burden remains on the

State to prove the defendant's guilt beyond a reasonable doubt.)

FINAL MANDATE ON ALL CHARGES AND DEFENSES

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant acting intentionally and with

malice, wounded the victim with a deadly weapon, thereby proximately

causing the victim's death, it would be your duty to return a verdict of

guilty of second degree murder. If you do not so find or have a

reasonable doubt as to one or more of these things, you will not return a

verdict of guilty of second degree murder. If you do not find the

defendant guilty of second degree murder, you must consider whether the

defendant is guilty of voluntary manslaughter.

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant intentionally wounded the victim

with a deadly weapon but the state has failed to satisfy you beyond a

reasonable doubt that defendant did not act in the heat of passion upon

adequate provocation, it would be your duty to return a verdict of guilty

of voluntary manslaughter.

If you do not find or have a reasonable doubt as to one or more of

these things, you will not return a verdict of guilty of voluntary

manslaughter. You must then determine whether the defendant is guilty

of involuntary manslaughter.

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant (name crime, e.g. recklessly

discharged a gun, killing the victim), (or) [acted in a criminally negligent

way] thereby proximately causing the victim's death, it would be your

duty to return a verdict of guilty of involuntary manslaughter. If you do

not so find or have a reasonable doubt as to one or more of these things,

it would be your duty to return a verdict of not guilty.