State v. Moore

215 S.E.2d 171 (1975)

26 N.C. App. 193

STATE of North Carolina v. Bobby Alex MOORE.

No. 7519SC16.

Court of Appeals of North Carolina.

June 4, 1975.

*172 Atty. Gen. Rufus L. Edmisten by Associate Atty. Noel Lee Allen, Raleigh, for the State.

S. H. McCall, Jr., Troy, for defendant appellant.

HEDRICK, Judge.

Defendant contends the trial court failed to declare and explain the law arising on the evidence presented by him which tended to show that the shooting was accidental, a violation of G.S. § 1-180. This assignment of error is sustained.

"G.S. 1-180 requires that the trial judge fully instruct the jury as to the law based on the evidence in the case. It is the duty of the court to charge the jury on all substantial features of the case arising on the evidence without special request therefor. (Citations omitted.) And all defenses presented by defendant's evidence are substantial features of the case. (Citations omitted.)" State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974).

Here, defendant's entire defense was his contention that the shot which struck Patricia Paxton was accidentally fired when Donna Edlum hit the shotgun with her hand. This was a substantial feature of the case and defendant was entitled to an instruction thereon without special request. State v. Douglas, 16 N.C.App. 597, 192 S.E.2d 643 (1972). Nowhere in his instructions did the trial judge charge the jury on the legal principles applicable to defendant's defense of an accidental shooting nor did he apply the law to the evidence giving rise to this defense in his final mandate. This error by the trial judge was not cured by the mere statement in several portions of the charge that the State had to prove the defendant "intentionally and without justification" assaulted Patricia Paxton by shooting her with a shotgun. See State v. Dooley, supra; State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969).

Defendant has other assignments of error which we do not discuss in view of the fact that they may not arise upon retrial of the case.

New trial.

BRITT and MARTIN, JJ., concur.