The defendant’s sole assignment of error -is to the refusal of the court below to sustain his motion for judgment as of nonsuit at the close of all the evidence.
In the case of S. v. Satterfield, 198 N.C. 682, 153 S.E. 155, in speaking of involuntary manslaughter, this Count said: “This offense consists in the unintentional killing of one person by another without malice (1) by doing some unlawful act not 'amounting .to a felony or naturally dangerous to human life; or (2) by negligently doing some act which in itself is lawful; or (3) by negligently failing or omitting to perform a duty imposed by law. These elements are embraced in the offense as defined at common law. Wharton, Homicide, 7; 1 Crim. Law (11 ed.), 622; 1 McClain on Crim. Law, 303, sec. 335; Clark’s Crim. Law, 204. The definition includes unintentional homicide resulting from the performance of .am unlawful act, from the performance of a lawful act done in a culpably negligent way, 'and from the negligent omission to perform a legal duty.”
In our opinion, 'the evidence adduced in the tidal below tends to show an accidental shooting; there is no evidence that the gun was intentionally discharged or that it was handled so .recklessly as to constitute culpable negligence. S. v. Cope, 204 N.C. 28, 167 S.E. 456; S. v. Watts, 224 N.C. 771, 32 S.E. 2d 348; S. v. Robinson, 229 N.C. 647, 50 S.E. 2d 740; S. v. Tolbert, 240 N.C. 445, 82 S.E. 2d 201; S. v. Becker, 241 N.C. 321, 85 S.E. 2d 327; S. v. Hancock, 248 N.C. 432, 103 S.E. 2d 491.
*232The defendant is entitled to his discharge, and to that end the judgment below is