#### STATE v. MATTIE BOLDIN.

(Filed 5 June, 1947.)

Homicide § 7—

The evidence tended to show that after an altercation with her husband, defendant got a loaded rifle from another room, went back in the kitchen and shot and killed her unarmed husband as he started back in the house. Defendant testified she pointed the rifle at him and “reckoned” she pulled the trigger, and that she did not know why she shot him. *Held:*An instruction that if the jury should find the facts to be as all the evidence tended to show to return a verdict of guilty of manslaughter, otherwise to acquit defendant, is without error. G-. S., 14-34.

Appeal by defendant from *Williams, J.,*at December Term, 1946, of Oeange.

No error.

Tbe defendant was indicted for the murder of her husband, Willie Boldin. The solicitor announced he would not ask for conviction of murder in the first degree, but of murder in second degree or manslaughter.

The evidence offered by the State tended to show that on Sunday, 17 February, 1946, the deceased returned home from Burlington “about drunk.” A quarrel ensued between him and his wife, in the course of which she struck at him with a knife. Deceased took the knife away from her and went out and threw the knife away. The defendant then went in another room and came back into the kitchen with a loaded rifle *595and as deceased started back in tbe bouse and was in tbe door sbe sbot bim, tbe bullet entering bis body just oyer tbe heart and inflicting a wound from wbicb be died shortly thereafter.

Tbe defendant testified that after tbe deceased took tbe knife away from her and went out, she went in another room and got tbe rifle and came back into tbe kitchen. As be started back in sbe threw up tbe rifle and he ran in and took bold of it. Sbe said: “I threw up tbe rifle and be ran in and grabbed it. I pointed it at bim. I reckon I pulled tbe trigger.” When asked why she sbot bim, sbe replied, “I don’t know.” She admitt'ed sbe was “mad because be was drunk.”

Tbe court in bis charge to tbe jury, after reviewing tbe testimony and stating the contentions of tbe State and defendant thereon, instructed the jury that there was sufficient evidence to rebut tbe presumption of malice arising from an intentional killing with a deadly weapon, and that they should not consider verdict of murder in tbe second degree. Thereupon, after defining manslaughter and pointing out the effect of tbe unlawful act of pointing a gun at another, tbe court charged as follows: “There is no evidence that tbe defendant sbot under any reasonable apprehension of receiving death or great bodily barm at tbe time; there is no evidence that tbe deceased was armed at tbe time, and I instruct you that if you find beyond a reasonable doubt tbe facts to be as all tbe evidence in this case tends to show, that it would be your duty to return a verdict of guilty of manslaughter; otherwise you would acquit her.”

Tbe jury returned verdict of guilty of manslaughter, and from judgment imposing prison sentence tbe defendant appealed.

*Attorney-General McMullan and Assistant Attorneys-Generdl Bruton, Rhodes, and Moody for the State.*

*Horton & Bell and B. D. Saiuyer for defendant.*

Devin, J.

Tbe defendant assigns error in tbe instructions given by tbe court to tbe jury as to manslaughter, on tbe ground that it eliminated tbe question of self-defense, but, upon a careful examination of tbe testimony offered in tbe trial as shown by tbe record before us, we agree with tbe learned judge below that there was no evidence that tbe fatal shooting was done in self-defense, or that it resulted from accident or misadventure. We think tbe defendant is unable to escape tbe implication from her own testimony that sbe was guilty of manslaughter. Sbe testified that sbe pointed tbe rifle at bim and “reckoned” sbe pulled tbe trigger; and in response to tbe question why sbe sbot bim sbe replied, “I don’t know.” *S. v. Stitt,*146 N. C., 643, 61 S. E., 566; *S. v. Limerick,*146 N. C., 649, 61 S. E., 568; *S. v. Parker,*198 N. C., 629, 153 S. E., 260; *S. v. Wall,*218 N. C., 566, 11 S. E. (2d), 880; G. S., 14-34. “At common law and by Rev., 3632 (now G. S., 14-34), one who points a *596loaded gun at another, though without intention of discharging it, if the gun goes off accidentally and kills, it is manslaughter.” *S. v. Coble,*177 N. C., 588, 99 S. E., 339.

None of the exceptions noted by defendant to the ruling of the court as to the admission of testimony can be sustained.

No error.