Appeal by defendant from Washington, Judge. Judgment entered 26 March 1981 in Superior Court, Rockingham County. Heard in the Court of Appeals 15 January 1982.
Clark, Judge. Judges Arnold and Whichard concur.
Defendant assigns as error the failure of the trial court to grant her motions for nonsuit and for appropriate relief. She contends that the State's evidence, excluding her own statements, was insufficient to withstand the motion for judgment as of nonsuit. She argues that the statements were exculpatory and were not disproved by any of the State's evidence.
Upon motion for judgment as of nonsuit, all admitted evidence must be considered in the light most favorable to the State, and the State must be given the benefit of every reasonable inference drawn therefrom. Contradictions and discrepancies in the evidence are matters for the jury and do not warrant nonsuit. State v. May, 292 N.C. 644, 235 S.E.2d 178, cert. denied, 434 U.S. 928, 54 L. Ed. 2d 288, 98 S. Ct. 414 (1977). There must be substantial evidence of all material elements of the offense in order to overcome the motion to dismiss. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956).
In order to establish the crime of second-degree murder, the State must prove beyond a reasonable doubt that there was an unlawful killing of a human being with malice but without premeditation and deliberation. G.S. 14-17. If the killing was done with a deadly weapon, it will be presumed that the killing was unlawful and done with malice. State v. Hodges, 296 N.C. 66, 249 S.E.2d 371 (1978).
The State's evidence in this case tended to show that defendant and the deceased, Terry Scott Wilkerson, had been drinking on 29 June 1980 and were arguing with each other. Although defendant stated on several occasions that Wilkerson killed himself, she also stated that the gun was in her hand when it went off. Expert testimony indicated that the gunshot wound was
not compatible with one that was self-inflicted. The fact that the gun was found in Wilkerson's right hand, but the gunshot wound was on the left side of his head also raises questions concerning the alleged suicide.
While defendant's statements to law enforcement officers do contain some exculpatory evidence, we believe that the physical factors involved, the expert testimony and the inculpatory portions of defendant's statements were sufficient to permit the jury to draw the reasonable inference that defendant unlawfully and with malice killed Terry Scott Wilkerson. While some of defendant's statements may tend to exculpate her of second-degree murder, this does not prevent the State from showing that the facts concerning the homicide were different from what the defendant stated. If the State introduces evidence that defendant is guilty of each element of the offense, the exculpatory statements do not warrant nonsuit. State v. Cooper, 273 N.C. 51, 159 S.E.2d 305 (1968); State v. Wilson, 264, N.C. 373, 141 S.E.2d 801 (1965). Although the jury did not convict defendant of this specific offense, we hold that the State's evidence was sufficient to overcome the motion for judgment as of nonsuit and to submit the issue to the jury.
We also find no merit in defendant's contention that the trial court erred in denying her motion for appropriate relief from the verdict of involuntary manslaughter. The defendant's own testimony disclosed that she and the deceased struggled with the gun, it went off and after the scuffling, the gun was in her hand. It is well-established that one who points a loaded gun at another, although without the intention of discharging it, commits manslaughter if the gun goes off accidentally and kills the other. State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168 (1971). We conclude that there was sufficient evidence showing a wanton or reckless use of a firearm so as to support the verdict of the jury.
In the trial of defendant, we find