¶1dissenting.
¶2Because I believe the majority’s holding under Section III abolishes the review of an erroneous failure to instruct on a lesser-included offense in every instance in which the jury has found a defendant guilty of a greater offense, I dissent.
¶3The majority relies upon State v. Hardison, 326 N.C. 646, 392 S.E.2d 364 (1990), in part, in holding that any error in failing to instruct on the lesser-included offense of involuntary manslaughter “was harmless in view of the jury’s verdict finding malice to support second-degree murder.” However, the majority’s reliance upon State v. Hardison cannot be reconciled with our Supreme Court’s decision in State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983). As in the subject case, the trial court in Wallacesubmitted three possible verdicts — first-degree murder, second-degree murder and voluntary manslaughter. In holding that the failure to also submit involuntary manslaughter to the jury constituted prejudicial error warranting a new trial, our Supreme Court stated:
[An] error in failing to instruct on involuntary manslaughter . . . is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the court’s charge.
This is also true when the jury returns a verdict convicting the defendant of the highest offense charged, even though the conviction could have been of an intermediate offense.
¶4309 N.C. at 146-47; 305 S.E.2d at 552; see also State v. Buck, 310 N.C. 602, 313 S.E.2d 550 (1984) (where the failure to instruct on involuntary manslaughter warranted a new trial even though second degree murder, voluntary manslaughter and not guilty of reason of both self-defense and accident charges were given).
¶5Thus, even under a plain error analysis, Wallacecontrols by holding that a conviction of a greater offense does not cure the failure to *418instruct on a lesser-included offense, if warranted by the evidence, unless the conviction was for first-degree murder based upon premeditation and deliberation. See 309 N.C. at 146-47; 305 S.E.2d at 552. Indeed, it is “reversible error for the trial court not to submit to the jury such lesser included offenses to the crime charged as are supported by the evidence.” State v. Lytton, 319 N.C. 422, 426-27, 355 S.E.2d 485, 487 (1987).
¶6Moreover, the majority states that the evidence in this case showed that, “Defendant and Leach struggled in the presence of multiple people with defendant holding his loaded gun and attempting to use it as a weapon to strike Leach.” Based upon this characterization of the evidence, an involuntary manslaughter instruction is warranted. See State v. Tidwell, 112 N.C. App. 770, 775-76, 436 S.E.2d 922, 926 (1993) (citing several Supreme Court cases in which the Court has consistently held that where there is evidence that the victim was unintentionally killed with a deadly weapon during a physical struggle with the defendant, the trial court should charge the jury on the offense of involuntary manslaughter).
¶7The majority also states “[m]alice can be implied from the circumstances ‘when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.’ ” Although this statement is true, as our Supreme Court explained in State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978), “both [involuntary manslaughter and second-degree murder] can involve an act of ‘culpable negligence’ that proximately causes death. Culpable negligence, standing alone, will support at most involuntary manslaughter. When, however, . . ., an act of culpable negligence also imports danger to another [and] is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life it will support a conviction for second degree murder.” In this case, the jury was not given the option of deciding whether defendant’s conduct, although reckless and wanton, constituted involuntary manslaughter.
¶8Likewise, the trial court’s instruction on voluntary manslaughter, does not cure the failure to instruct on involuntary manslaughter because the elements and circumstances constituting voluntary manslaughter differ from those constituting involuntary manslaughter. Compare State v. Rinck, 303 N.C. 551, 280 S.E.2d 912 (1981) (defining voluntary manslaughter as “the unlawful killing of a human being without malice, express or implied, and without premeditation and deliberation.”) and State v. Barts, 316 N.C. 666, 343 S.E.2d 828*419(1986) (explaining that voluntary manslaughter occurs when one kills intentionally but does so in heat of passion suddenly aroused by adequate provocation or in exercise of self-defense where excessive force is utilized or defendant is the aggressor”) with State v. Wallace, 309 N.C. 141, 145, 305 S.E.2d 548, 551 (1983) (defining involuntary manslaughter as the unlawful and unintentional killing of another human being, without malice, which proximately results from ... an act or omission constituting culpable negligence”) and State v. Wrenn, 279 N.C. 676, 683, 185 S.E.2d 129, 133 (1971) (indicating the wanton or reckless use of firearms in the absence of intent to discharge the weapon proximately causing the death of a human being may constitute involuntary manslaughter).
¶9I also reject the notion that the jury’s conviction of defendant of second-degree murder cures the trial court’s failure to instruct on involuntary manslaughter.
¶10The majority cites State v. Wilkerson, 295 N.C. at 578, 247 S.E.2d at 915, as standing for the proposition that “a finding of malice precludes a finding of either voluntary manslaughter or involuntary manslaughter.” However, that part of the Wilkersondecision simply defined malice and explained that unlike second-degree murder, malice is not an element of manslaughter. Unlike first-degree murder based upon premeditation and deliberation where the jury must find the defendant acted with a specific intent to kill, second-degree murder and voluntary manslaughter are general intent crimes where the jury must only find the defendant intended to do the act which resulted in the death of another. See State v. Coble, 351 N.C. 448, 449-50, 527 S.E.2d 45, 46-47 (2000). In these types of homicide cases, the jury is not specifically finding the presence or absence of malice. Indeed, the intentional use of a deadly weapon gives rise to a presumption of malice and it is only through mitigation that one is convicted of voluntary manslaughter. See State v. Knight, 87 N.C. App. 125, 129, 360 S.E.2d 125, 128 (1987) (discussing that absent heat of passion or evidence of self-defense, the intentional infliction of a wound raises a mandatory presumption of unlawfulness and malice). Involuntary manslaughter is also a general intent crime which involves a killing without malice. But unlike voluntary manslaughter and second-degree murder, the killing in involuntary manslaughter is unintentional.
¶11As our Supreme Court stated in Wallace, “the erroneous failure to submit the question of defendant’s guilt of lesser degrees of the same crime is not cured . . . when the jury returns a verdict convicting the *420defendant of the highest offense charged, even though the conviction could have been of an intermediate offense.” 309 N.C. at 146-47; 305 S.E.2d at 552. Indeed, “if the jury did not believe that the shooting was a nonnegligent accident, then under the evidence and instructions it was left with no alternative other than a verdict of murder in the second degree.” Id.; see also State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977) (where in an assault with a deadly weapon case, the failure to submit guilty of simple assault to the jury was not cured by a jury finding that a stick was a deadly weapon since it could not be known whether the jury would have convicted defendant of the lesser offense if the jury had been permitted to do so).
¶12Furthermore, the majority eviscerates the existing law in North Carolina that evidence must be viewed in the light most favorable to the defendant in determining whether an instruction on á lesser-included offense should have been given. State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994). Under the new rule now made by the majority, a defendant would not be entitled to an involuntary manslaughter instruction once the evidence showed that malice could be implied from the circumstances of the killing. However, under Barlowe, in determining whether the trial court committed reversible error in failing to submit a lesser-included offense of involuntary manslaughter, this Court should focus on whether the jury could find that the killing was committed without malice, not whether the jury could find that the killing was committed with malice. In essence, the majority’s rule would now preclude any lesser-included offense instructions if the evidence merely shows that there was sufficient evidence of the greater offense. I believe that is error. See State v. Leazer, 353 N.C. 234, 539 S.E.2d 922 (2000); State v. Golden, 143 N.C. App. 426, 546 S.E. 2d 163 (2001) (holding that the test for submission of lesser-included offenses is the presence or absence of any evidence in the record which might convince a rational finder of fact to convict defendant of less grievous offense); see also State v. Smith, 351 N.C. 251, 268, 524 S.E.2d 28, 40 (2000) (explaining that only “if the state’s evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements other than defendant’s denial that he committed the offense, [then] the defendant is not entitled to an instruction on the lesser offense”).
¶13In sum, every greater offense by definition contains an element that is not included in a lesser-included offense. Under the majority’s rationale today, a jury’s finding of guilty of a greater offense would *421render harmless the erroneous failure of a trial court to instruct on a lesser-included offense because the jury found that the evidence was sufficient to support the additional element not included in the lesser offense. That conclusion, in my opinion, is error; I dissent.