(after stating the facts). The Court instructed the jury, that if they should believe the evidence, the prisoner was guilty of manslaughter. They rendered a verdict of guilty of that offence, and it must be taken that they believed the evidence ; and, if they did, it is manifest that the prisoner was at least guilty of manslaughter. If it be granted that he and Hines were in jest and rough sport — and this is by no means certain — he was using a dangerous weapon — a loaded pistol, knowing that it was loaded — not only incautiously, but in a most reckless and unlawful manner. He had it pointed at Hines, who fell behind the deceased, saying as he did so, “shootand be damned,” when at once he fired the fatal shot. If he did not intend to kill Hines, and the discharge of the pistol was unintentional, still the killing was manslaughter, because in any view of his conduct, he used the dangerous weapon carelessly, recklessly and unlawfully. It is clear, that where one engaged in an unlawful or dangerous sport, kills another by accident it is manslaughter. Arch. Cr. Pl., 397; Fost. Cr. Law, 259, 260, 26); 1 Hale Pl. Cr., 472, 473; Ros. Cr. Ev., 687, 688; State v. Shirley, 64 N. C., 610; State v. Roan, 2 Dev., 58. This, however, would not be so, if the sport were lawful and not danger-*496ons — in such case it would be no more than homicide by misadventure. There is a variety of cases in which a person, causing the death of another, without intending to inflict injury, is criminally responsible, though not under the circumstances, chargeable with murder. In such cases, the test of responsibility depends upon whether the conduct of the party accused, was unlawful, or, not being so, was so grossly negligent, reckless or violent, as necessarily to imply moral impropriety or turpitude. In some cases it may be difficult to determine the grade of the offence, but the case before us leaves no ground for doubt or hesitation in determining that it is at least one of manslaughter; indeed, in one aspect of the case, it was murder. There was some evidence going to show the wilful purpose of the prisoner to shoot without regard to the consequences, and if this purpose existed, it was murder.
The prisoner’s counsel proposed to ask the witness, “if he regarded the shooting as accidental?” Upon objection, the Court would not allow the question to be put, and this is made a ground of exception.
The question was properly excluded, because, first, the opinion of the witness was not competent evidence, and secondly, it was immaterial.
Generali}', the Court or the jury, as the case may be, as the triers of questions and issues involving the ascertainment of facts, reach their conclusions from the facts in evidence before them, and not from the opinions of witnesses. There are well defined exceptions to this general rule, but these do not affect this case, and need not be stated here. If, in some possible cases, the opinion of a non-expert may be competent evidence, as ingeniously contended by the counsel for the prisoner in his very interesting brief, this is clearly not one of them. The facts of the case were plain, clear and distinct, and the witness by a simple recital of them, put the Court and jury in full possession of them and the circumstances attending the homicide, and they were as competent to judge whether or not the shooting was accidental as the witness. There is nothing in the case that warrants a depar*497ture from the general rule of law that excludes such evidence.
If the facts testified to, were not stated with sufficient fullness of detail, the prisoner might have elicited them by a proper cross-examination of the witness, in which case, the jury could have drawn proper inferences from them without the opinion of the witness. There was no necessity for the opinion of the witness in order to give the jury facts they could not get otherwise than by his opinion.
The opinion of the witness was also immaterial. If he had been allowed to say that in his opinion the shooting was accidental, this could not have materially changed the case, because, the prisoner had used the loaded pistol in an unlawful and reckless manner, and whether the firing was accidental or not, made no difference. The law does not tolerate such use of dangerous weapons, and when fatal consequences result from it, the offender cannot be held guiltless; in such case he must answer for the consequences. It would be monstrous and shocking to reason to allow a man to so use a loaded pistol, and then take shelter behind the fact that the firing was accidental!
It was insisted on the argument here, that the Judge invaded the province of the jury in instructing them that, “if they believed the testimony of the witness, the prisoner was guilty of manslaughter.” We do not think so; this contention has not the slightest foundation.
'The Judge did not intimate in the least degree in terms or by implication, that- he did or did not believe the evidence to be true, nor did he tell the jury that they should believe it, or any part of it; he, in effect, told them that in any possible view of the evidence (and taking it most favorably for the prisoner), if they believed it to be true, then as a conclusion of law, he was guilty of manslaughter. This was unobjectionable in this case.
There was but one witness — there was noconflict of testimony— there were no alternative aspects of it to be submitted. The credit of the witness and the sufficiency of his testimony to produce conviction upon their minds, was broadly and without quali*498fication left to the jury. State v. Walker, N. C. T. R. (230), 662; State v. Hildreth, 9 Ired., 429; State v. Ellick, 2 Winst., 56; State v. Baker, 63 N. C., 276; State v. Elwood, 73 N. C., 189; State v. Buck, 82 N. C., 551.
The case of State v. Dixon, 75 N. C., 275, relied upon by the counsel, is not like this. There the Judge directed the jury to return a verdict of manslaughter. This was obviously erroneous — the jury were not allowed to pass upon the weight and sufficiency of the evidence, nor to say whether or not they believed it.
In our judgment, the prisoner has not the slightest ground of complaint at the verdict of the jury, or the action of the Court. Indeed, it is fortunate for him that he was not convicted of a more serious offence.
There is no error. To the end that judgment be rendered and further proceedings may be had in the action, let this opinion be certified to the Superior Court according to law'.
No error. Affirmed.