N.C.P.I.—Crim. 206.35

NOTE WELL: This instruction is designed primarily for

use in cases where the State seeks to establish second

degree murder on the theory that the victim died as a

result of child beating by the defendant, and where

there is little or no direct evidence of the precise

manner of the victim's death or of the defendant's

intent. In such cases, the chief factual issues will

usually be whether the victim died as a result of

intentionally inflicted wounds and not accidentally,

whether those wounds were inflicted by the defendant

and not someone else and whether the defendant

acted with sufficient "wickedness of disposition,

hardness of heart, cruelty, recklessness of

consequences and mind regardless of social duty and

deliberately bent on mischief" to supply the malice

necessary for murder. This instruction is designed to

emphasize those issues as they are likely to be raised

by circumstantial evidence in a child beating case.

If the State charges first degree murder, or relies

primarily on direct evidence of the defendant's behavior

and intent in a second degree murder case, a specially

drafted instruction is probably unnecessary and the

standard first or second degree murder charges may be

used instead of this one. Similarly, if the State

charges only involuntary manslaughter, N.C.P.I.-Crim.

206.50 may be used.

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 involuntary manslaughter, or

(3) not guilty.2

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

malice.

Involuntary manslaughter is the unintentional killing of a human

being by an act done in a criminally negligent way or by an unlawful act

not amounting to a felony.

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

State must prove five things beyond a reasonable doubt:

First, that the victim received a fatal injury.

Second, that this injury 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,3 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 last or 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.)4

Third, that this injury was inflicted intentionally (and not by

accident or misadventure). An injury is inflicted intentionally when the

person who caused it intended to apply the force by which it was caused.

Intent is a mental attitude seldom provable by direct evidence. It must

ordinarily be proved by circumstances from which it may be inferred. An

intent to apply force to the body of another may be inferred from [the act

itself] [the nature of the injury] [the conduct or declarations of the

person who applied it] [other relevant circumstances].

NOTE WELL: Where there is evidence that the victim

displayed the "battered child syndrome" or similar

injuries, the judge should include the following

paragraph:

(If you find from the evidence beyond a reasonable doubt that at

the time when the victim died, the victim had sustained multiple injuries

at different locations on the victim’s body, and that those injuries were at

different stages of healing, (and, if you find that the physical condition of

the victim's body was inconsistent with any explanation as to the cause

of the victim's injuries given at or about the time of his the victim’s

death), you may consider such facts along with all other facts and

circumstances in determining whether the injury which caused the victim's

death was intentionally inflicted and not the product of accident or

misadventure.)5

Fourth, that the person who inflicted this injury was the defendant

and not some other person. (If you find that the victim was in the

exclusive care or custody of the defendant during the [time] [times] when

the victim’s injuries were sustained, you may consider this fact along with

all other facts and circumstances in determining whether those injuries

were inflicted by the defendant.)

And Fifth, that the defendant acted with malice. Malice is the chief

element which distinguishes second degree murder from involuntary

manslaughter.

Malice means not only hatred, ill will, spite or particular animosity

as they are ordinarily understood, though these are malice to be sure.

Any act evidencing a wickedness of disposition, hardness of heart,

cruelty, recklessness of consequences and a mind regardless of social

duty and deliberately bent on mischief is sufficient to supply the malice

necessary for second degree murder. To find that the defendant acted

with malice, you need not find that the defendant intended to kill the

victim, but you must find beyond a reasonable doubt that the defendant’s

acts were so reckless or wantonly done as to indicate a total disregard of

human life.6

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 unintentional killing of a

human being by an act done in a criminally negligent way or by an

unlawful act not amounting to a felony.

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 [in a criminally negligent way] (or)

[unlawfully].

[Criminal negligence is distinguished from malice in that it does not

necessarily require an act which evidences a heart devoid of a sense of

social duty or which is done so recklessly or wantonly as to manifest

depravity of mind and disregard for human life. On the other hand,

criminal negligence is more than mere carelessness. Criminal negligence

requires such reckless or careless behavior as shows a thoughtless

disregard of the consequences of that behavior or a heedless indifference

to the safety and rights of others.]

[The defendant acted unlawfully if the victim was less than 16

years of age and the defendant was [the parent of] [providing care to or

supervision of] the victim and if the defendant inflicted physical injury on

the victim or allowed physical injury to be inflicted on the victim or

created a substantial risk that the victim would suffer physical injury by

other than accidental means.]

And Second, that the defendant's [criminally negligent] (or)

[unlawful] conduct proximately caused the victim's death.

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

[criminal negligence] (or) [an unlawful act] 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

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

about the alleged date the victim sustained a fatal injury, and that this

injury proximately caused the death of the victim and that this injury was

inflicted intentionally (and not by accident), and that it was the

defendant who intentionally inflicted this injury and that in so doing the

defendant acted with malice, 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 would not return

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

defendant guilty of second degree murder, you must determine whether

he the defendant is guilty of involuntary manslaughter.

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

about the alleged date,

a) [the defendant acted in a criminally negligent way]

b) [the victim was less than 16 years of age and the defendant

was [the victim’s parent] [a person providing for the victim’s care or

supervision] and the defendant [inflicted physical injury] [allowed

physical injury to be inflicted] on the victim] (or) [created a substantial

risk that the victim would suffer physical injury by other than accidental

means] and if you find that the defendant's conduct was a proximate

cause of 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 any of these things, it would be your duty to

return a verdict of not guilty.