#### GIRLIE SLATE, Administratrix of Estate of ELMER ALBERT SLATE, Deceased, v. CLYDE O. SAPP.

(Filed 2 February, 1938.)

Appeal by plaintiff from *Harding, J.,*at May Term, 1937, of Forsyth.

Action instituted 5 October, 1936, to recover for wrongful death.

Tbe uncontroverted facts are: Elmer Albert Slate died on 7 August, 1936, as a result of a wound in tbe upper part of tbe left shoulder ranging down, inflicted by a gun in tbe bands of and fired by tbe defendant. Girlie Slate is tbe duly appointed and qualified administratrix of Elmer Albert Slate. At tbe time of bis death, and for several months prior thereto, Elmer Slate bad been working on tbe farm witb, and residing in tbe borne of, tbe defendant. Tbe borne, a dwelling, is two stories in front and one story iii tbe back. Tbe front door opens into a *837ballway from wbieb a door leads into a room on each side. Tbe stairway to tbe second floor is located on tbe left of tbe ballway, just back of tbe door to tbe left front room, and 4 feet from tbe front door. Tbe defendant, bis wife and small child, slept in tbe right front room, and Elmer Slate slept in tbe room above. There is a porch on tbe front-and a walkway leading to tbe road, 45 or 50 feet away. There is a window in tbe front of tbe room in which defendant slept opening on to tbe porch. Tbe front door was partly glass.

Plaintiff alleged and contended that on tbe night of 7 August, 1936, about 9 o’clock, plaintiff’s intestate bad gone out of tbe bouse to tbe front yard and as be was returning and entering tbe front door to go up tbe stairway to bis room, tbe defendant carelessly, negligently, willfully, and in reckless disregard of tbe life of tbe intestate, shot and billed him; that defendant was negligent in failing to make proper inquiry to ascertain tbe identity of tbe intestate; that be failed to exercise tbe care of a reasonably prudent person under tbe circumstances in that, knowing that tbe intestate was accustomed to use tbe front door in going to and from bis room, and after observing intestate, be failed to call out to him in an audible tone; in that be failed to strike a match or light a lamp; and in that be became unduly alarmed and acted too hastily. Tbe plaintiff offered testimony tending to show that intestate was shot as be entered tbe front door; that tbe defendant admitted that be shot tbe intestate, and that upon being asked on tbe second day thereafter, while tbe intestate was a corpse, “What did you kill him for ?” be replied: “Tbe Lord bad me kill him.”

Tbe defendant in bis answer denied the material allegations of tbe complaint, and alleged and offered evidence tending to show that on tbe night in question tbe intestate and defendant and bis family retired about 8 o’clock; that a rain and windstorm came up about 9 o’clock, and tbe defendant went upstairs and called to tbe intestate to pull down tbe window; that at that time intestate was in bed; that defendant then went back to bis room and to bed; that later, about midnight, be' was awakened by bis wife, who informed him that someone was at tbe window on tbe porch; that be then got up and went out in tbe ball to tbe front door and saw a person going down tbe walkway toward tbe road; that this person turned and came back toward tbe bouse, and on seeing him coming, defendant secured bis gun and as tbe person came into tbe door be called to him to “Stop — halt”; that on receiving no answer and seeing tbe person creeping toward him, be fired; that be thought tbe person was a burglar; that be bad no reason to think that tbe intestate was out in tbe yard; and that if intestate was a sleep-walker, be bad no knowledge of it.

*838The case was submitted to the jury on the following issues:

“1. Was the death of the plaintiff’s intestate caused by the wrongful acts of the defendant, as alleged in the complaint?

“2. *If'*so, did the defendant willfully and maliciously cause the death of plaintiff’s intestate, as alleged in the complaint?

“3. What amount, if any, is the plaintiff entitled to recover of the defendant ?”

The jury answered the first issue “No.”

From judgment on the verdict plaintiff appealed to the Supreme Court, and assigned error.

*John D. Slawter and Richmond Rucker for plaintiff, appellant.*

*No counsel contra.*

Pee Cueiam.

The record fails to disclose reversible error. Exceptions to portions of the charge are untenable. When read as a whole, the charge fairly presents the case to the jury. Defendant’s version of the circumstances under which the intestate came to his untimely death was accepted by the jury. However regrettable the occurrence be, the verdict finds the defendant without fault.

We have considered all exceptions.

In the trial we find

No error.