Is Involuntary Manslaughter a Lesser of Second-Degree Murder by Drug Overdose?

I’ll save you the suspense: Yes. Read on for an explanation. In North Carolina, second-degree murder occurs when a person kills another living human being with malice. See Jessica Smith, North Carolina Crimes, A Guidebook on the Elements of Crime 90 (7th ed. 2012) [hereinafter NC Crimes]. North Carolina law recognizes three forms of malice: (1)  the express emotions of hatred, ill will, and spite; (2)  the commission of an inherently dangerous act in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief (which I refer to below as “inherently dangerous act” malice); and (3)  a condition of the mind which prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily injury which proximately results in death, without just cause, excuse, or justification. NC Crimes at 84 & 91. Suppose the defendant is charged with second-degree murder. Suppose further that the victim died of a drug overdose after having purchased drugs from the defendant. If the evidence supports it, can the judge instruct on involuntary manslaughter? Put another way, is involuntary manslaughter a lesser-included offense of second-degree murder based on a drug overdose? For the reasons below, I think that the answer is yes. In State v. Barnes, 226 N.C. App. 318 (2013), the defendant was indicted for second-degree murder of victim Cardwell. At the time, G.S. 14-17 defined first-degree murder and provided: All other kinds of murder, including [...]