State v. Hamilton

208 S.E.2d 883 (1974)

23 N.C. App. 311

STATE of North Carolina v. Johnny J. HAMILTON.

No. 7420SC558.

Court of Appeals of North Carolina.

October 16, 1974.

*885 Atty. Gen. James H. Carson, Jr., by Asst. Atty. Gen. William F. Briley, Raleigh, for the State.

Cashwell & Ellis by B. Craig Ellis, Laurinburg, for defendant.

BROCK, Chief Judge.

Defendant contends that the trial court committed error in refusing to allow defendant's motion as of nonsuit at the conclusion of all the evidence due to the defendant's testimony concerning self-defense.

On motion to nonsuit the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the State's evidence, are for the jury to resolve and do not warrant nonsuit. Only the evidence favorable to the State is considered, and defendant's evidence relating to matters of defense or defendant's evidence in conflict with that of the State is not considered. State v. Henderson, 276 N.C. 430, 173 S.E.2d 291; 2 Strong, N.C. Index 2d, Criminal Law, § 104. In State v. Everette, 284 N.C. 81, 85, 199 S.E.2d 462, 466, the court stated: "In passing upon the sufficiency of the State's evidence to carry the case to the jury, the trial court in the present case was not required to consider defendant's testimony concerning self-defense. Therefore, the court properly refused to enter judgment as of nonsuit for defendant." This assignment of error is overruled.

Defendant contends that the trial court committed error in its charge to the jury. The trial judge charged: "In order to reduce the crime to manslaughter, the defendant must prove, not beyond a reasonable doubt, but simply to your satisfaction, that there was no malice on his part." Defendant argues that the court erred when it failed to explain the difference between the terms "beyond a reasonable doubt" and "to your satisfaction."

"[W]hen the burden rests upon an accused to establish an affirmative defense. . . the quantum of proof is to the satisfaction of the jurynot by the greater weight of the evidence nor beyond a reasonable doubtbut simply to the satisfaction of the jury." State v. Freeman, 275 N.C. 662, 666, 170 S.E.2d 461, 464. In Freeman the court held that "`[T]he accepted formula and the one that should be used if risk of error is to be avoided, is that the defendant has the burden of proving his defense (or mitigation) "to the satisfaction of the jurynot by the greater weight of the evidence nor beyond a reasonable doubtbut simply to the satisfaction of the jury."'" 275 N.C. at 666, 170 S.E.2d at 464.

This Court has held that a charge identical to the charge of which the defendant complains did not constitute error:

Although the trial judge would have been well advised to have used the above-quoted language from the Freeman case, we are of the opinion and so hold that when the charge is read as a whole, no prejudicial error appears therein with respect to the intensity of proof required of a defendant in order to establish the defense of self-defense. State v. Richardson, 14 N.C.App. 86, 88, 187 S.E.2d 435, cert. denied, 284 N.C. 258, 200 S.E.2d 658.

Defendant's argument is without merit.

After retiring to consider its verdict, the jury returned and requested the court to define again the difference between murder in the second degree and manslaughter. The trial judge repeated his charge on the difference between the two *886 offenses. Defendant assigns this as error, contending that compliance with the jury's request failed to leave open the possibility that the jury could still find the defendant not guilty. This contention has no merit. "[A] judge who is requested by the jury to reiterate his instructions on some particular point is not required to repeat his entire charge." State v. Dawson, 278 N.C. 351, 365, 180 S.E.2d 140, 149.

Defendant contends that the court committed error in failing to set aside the verdict as being contrary to the evidence. For reasons set forth above, this assignment of error is overruled.

It is our opinion that defendant received a fair trial free from prejudicial error.

No error.

MORRIS and MARTIN, JJ., concur.