N.C.P.I.—Crim. 206.41

NOTE WELL: This instruction is designed for use in

those cases in which the most serious homicide

charged is voluntary manslaughter. It should be used

only in cases where there is evidence that the

defendant killed intentionally, but did so in the heat of

passion and not in self-defense. It should not be used

in cases, such as child abuse, where the killing is

unintentional, but may have been with malice in that it

was done in wanton disregard of human life, S. v.

Wilkerson, 295 N.C. 559, 583 (1978), nor should it be

used in any other case where there is no evidence of

heat of passion, provocation or self-defense. Cf. S. v.

Wetmore, 298 N.C. 743, 750 (1979); S. v. Montague,

298 N.C. 759 (1979). In all such cases, consult

N.C.P.I.-Crim. 206.35 or 206.50.1 Where self-defense is

an issue, use N.C.P.I.-Crim. 206.40.

Effective December 1, 1997 Voluntary Manslaughter is a

Class D Felony. For offenses occurring before

December 1, 1997 Voluntary Manslaughter is a Class E

Felony.

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

206 Series.

The defendant has been charged with voluntary manslaughter.

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

return one of the following verdicts:

1) guilty of voluntary manslaughter

2) guilty of involuntary manslaughter

3) not guilty

Voluntary manslaughter is the unlawful killing of a human being by

an intentional act.

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

State must prove two things beyond a reasonable doubt:

First, that the defendant killed the victim by an intentional2 and

unlawful act.

And Second, 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,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 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.)

If you do not find the defendant guilty of 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

[(describe crime, e.g., "defendant assaulted the victim") (define

assault).] 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 State must prove that this [unlawful] [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, by the defendant’s intentional and

unlawful act proximately caused the victim's death, it would be your duty

to find the defendant guilty of voluntary manslaughter.

However, 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

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 [(describe crime)] [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. However, 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.