N.C.P.I.—Crim. 206.32A

NOTE WELL: For Second-Degree Murder by Vehicle, including

Involuntary Manslaughter offenses involving impaired driving, use

N.C.P.I.—Crim. 206.32.

NOTE WELL: If a separate charge for an underlying offense is

submitted, then the jury may only convict the defendant of this

offense if it also convicts the defendant of the underlying

offense. See State v. Mumford, 2010 No. COA09-300, N.C.

App. LEXIS 35, (Jan. 5, 2010).

CAUTION: If the jury convicts the defendant of this offense and

the underlying offense, the court should arrest judgment on the

underlying offense. If the jury finds the defendant not guilty of the

underlying offense, the court must arrest judgment on this

offense.

The defendant has been charged with second-degree murder. 1 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 involuntary manslaughter, or

(3) Guilty of misdemeanor death by vehicle, or

(4) Not guilty.

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

malice.

Involuntary manslaughter is the unlawful, unintentional killing of a

human being by an act done in a culpably negligent way.

Misdemeanor death by vehicle is the unintentional killing of a human

being which is proximately caused by the violation of any law or ordinance

governing the operation of motor vehicles.

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

the State must prove seven things beyond a reasonable doubt:

First, that the defendant was driving 2 a vehicle. 3

Second, that the defendant was driving that vehicle upon a [highway]

[street] [public vehicular area] within the state. 4

Third, that while being operated by the defendant the motor vehicle was

involved in a(n) [accident] [collision].

Fourth, that a person was killed in this [accident] [collision].

Fifth, that the defendant violated the following law or laws of this State

governing the operation of motor vehicles. The laws of this State make it

unlawful to (define pertinent law(s) and enumerate its or their elements). For

you to find the defendant guilty of (state underlying offense), the State must

prove these things beyond a reasonable doubt:

(List elements of underlying offense.)

Sixth, that the defendant acted unlawfully and with malice. Malice is a

necessary element which distinguishes second degree murder from

manslaughter. 5 Malice 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. 6

And Seventh, that the death of the alleged victim was proximately

caused by the unlawful act(s) of the defendant done in a malicious manner. A

proximate cause is a real cause, without which the alleged victim's death

would not have occurred, 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(s) need not have been the last,

or nearest cause. It is sufficient if [it] [they] concurred with some other cause

acting at the same time which, in combination with [it] [them], proximately

caused the alleged victim's death.) (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

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

must consider whether the defendant is guilty of involuntary

manslaughter. Involuntary manslaughter is the unlawful, unintentional killing

of a human being by an act done in a culpably 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's violation(s) of law governing the operation of

a motor vehicle constituted culpable negligence. Such violation will constitute

culpable negligence if the violation is willful, wanton, or intentional. But,

where there is an unintentional or inadvertent violation of the law, such

violation standing alone does not constitute culpable negligence. To

constitute culpable negligence, the inadvertent or unintentional violation of

the law must be accompanied by recklessness of probable consequences of a

dangerous nature, when tested by the rule of reasonable foresight, amounting

altogether to a thoughtless disregard of consequences or a heedless

indifference to the safety of others. 8

And Second, that the defendant's culpable negligence proximately

caused the alleged victim's death. 9

If you do not find the defendant guilty of involuntary manslaughter, you

must consider whether the defendant is guilty of misdemeanor death by

vehicle. 10 Misdemeanor death by vehicle differs from involuntary

manslaughter in that the State need not prove that the defendant was culpably

negligent only that the defendant’s violation of a law or ordinance governing

the operation of motor vehicles proximately caused the alleged victim's death.

FINAL MANDATE

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

about the alleged date the defendant drove a vehicle on a [highway] [street]

[other public vehicular area], and that when the defendant did so the

defendant (list elements of underlying offense) and that the defendant acted

intentionally and so recklessly and wantonly as to manifest a mind utterly

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

mischief, and that this conduct constituted malice, and that such conduct

proximately caused the death of the alleged victim, 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. 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 drove a motor vehicle on a [highway]

[street] [other public vehicular area], and without malice, but in a culpably

negligent manner, violated the laws of this State governing the operation of

motor vehicles] and that this culpably negligent conduct proximately caused

the death of the alleged victim, 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, you will not return a verdict of guilty

of involuntary manslaughter. You must then determine if the defendant is

guilty of misdemeanor death by vehicle.

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

about the alleged date the defendant drove a motor vehicle on a [highway]

[street] [other public vehicular area] and in so doing (describe violation(s),

e.g., exceeded the posted speed limit) and that such violation (or violations)

proximately caused the death of the alleged victim, it would be your duty to

return a verdict of guilty of misdemeanor death by vehicle. If you do not so

find or if you have a reasonable doubt as to one or more of these things, it

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