STATE OF NORTH CAROLINA
v. Halifax County
No. 00 CRS 51859
WILBERT RADEL FORBES
Attorney General Roy Cooper, by Assistant Attorney General
William W. Stewart, Jr., for the State
Bruce T. Cunningham, Jr., for defendant-appellant.
BIGGS, Judge.
Wilbert Radel Forbes (defendant) was tried by a jury and
convicted of first degree murder and sentenced to life imprisonment
on 16 August 2001. For the reasons discussed herein, we find no
error.
The State presented evidence at trial which tended to show the
following: On 26 September 2000, defendant Wilbert Radel Forbes,
his brother Ernest Forbes, James Duncan, Ronnie Duncan, and William
Dobson traveled together in a van to a logging site in Halifax
County. The men were members of a logging crew scheduled to work
that day. During the drive to the logging site, defendant and his
brother began arguing because Ernest did not stop at a conveniencestore where the crew usually stopped.
Upon arriving at the logging site, Ernest got out of the van
and walked away, and defendant got out, punched Ronnie Duncan in
the side and said “watch this.” Duncan then testified that
defendant told his brother “if you can do so much without me on
Saturdays go grease the loader and change the oil.” Ernest
stopped, turned around and said to defendant, “why do you f--- with
me so much.” Ernest then started back towards defendant, and the
two began pushing and shoving. Duncan then got in between the two
men and separated them, and Ernest told defendant “if I had any
knife I would cut your m --- f--- throat.” Duncan testified that
Ernest did not have a knife at the time.
Duncan then testified that defendant pulled out a gun, pointed
it at Ernest and said to Duncan, “you don't believe I'll blow his
m --- f--- brains out?” Duncan told defendant to “stop playing,”
but defendant pulled the hammer back, said to Ernest “I'll blow
your m --- f ---,” and pulled the trigger. Ernest died from a
gunshot wound to the head.
Defendant testified that the shooting was accidental.
Defendant stated that Ernest pulled out a pocketknife, and said he
would cut defendant's head off. Defendant then pulled out his gun
and cocked it, and Ernest closed the knife. Defendant then
testified that “I was turning to Ronnie to my right rear and
[Ernest] pushed and when he did it the gun went off.”
Defendant was convicted of murder and sentenced to life
imprisonment without parole. Defendant appeals. Defendant's sole argument on appeal is the trial court erred
by refusing his request for an instruction on accident. Defendant
asserts that he testified repeatedly that the killing was
accidental, and that the gun went off while he and his brother were
engaged in “horseplay.” Accident is a complete defense to a
homicide charge. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337
(1965). Accordingly, defendant contends that it was error for the
trial court to not instruct on accident and to instead instruct on
involuntary manslaughter.
After careful review of the record, briefs and contentions of
the parties, we find no error. Our Supreme Court has stated:
A killing will be excused as an accident when
it is unintentional and when the perpetrator,
in doing the homicidal act, did so without
wrongful purpose or criminal negligence while
engaged in a lawful enterprise. “The defense
of accident 'is triggered in factual
situations where a defendant, without
premeditation, intent, or culpable negligence,
commits acts which bring about the death of
another.'” However, the evidence does not
raise the defense of accident where the
defendant was not engaged in lawful conduct
when the killing occurred.
State v. Riddick, 340 N.C. 338, 342, 457 S.E.2d 728, 731 (1995)
(citations omitted); see also State v. Turner, 330 N.C. 249, 262,
410 S.E.2d 847, 854 (1991).
In the case sub judice, the defendant testified that when he
and his brother arrived at the logging site, they had been joking
around, engaged in horseplay. When his brother walked away,
defendant continued with his teasing, telling him to “keep your
hands off of me you might have some type of disease.” Defendant'sbrother came “running back up” and “pulled his knife out.”
Although the victim had a knife, defendant testified that he didn't
believe he would hurt him with it. Rather than walk away,
defendant pulled out his pistol, cocked it and pointed it in his
brother's direction. Defendant then testified that his brother
pushed him and the gun went off, killing him.
This case is similar to the facts in Riddick. In Riddick, our
Supreme Court determined that an instruction on accident was not
warranted. The Court explained that:
The evidence is thus undisputed that the
defendant sought out the victim, that the
defendant intentionally confronted the victim
with a loaded firearm, that the defendant
assaulted the victim, and that the gun was in
the defendant's hand when two bullets, one of
which entered the victim's body, were fired
from it. “The fact that the defendant claims
now that he did not intend the shooting does
not cleanse him of culpability and thus give
rise to a defense of accident.”
Id. at 343, 457 S.E.2d at 731 (quoting State v. Lytton, 319 N.C.
422, 426, 355 S.E.2d 485, 487 (1987)). As in Riddick, “the
evidence clearly showed that the defendant voluntarily created the
volatile situation which resulted in the victim's death.” Id. He
instigated the confrontation with his brother, and pulled out a
loaded gun and pointed it at him. Thus, we conclude an instruction
on accident was not warranted. Accordingly, we find no error.
No error.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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