State v. Jones

241 S.E.2d 523 (1978)

35 N.C. App. 388

STATE of North Carolina v. Orlandus JONES.

No. 7712SC802.

Court of Appeals of North Carolina.

February 21, 1978.

*524 Atty. Gen. Rufus L. Edmisten by Associate Atty. Patricia B. Hodulik and Sp. Deputy Atty. Gen. Edwin M. Speas, Jr., Raleigh, for the State.

Anthony E. Rand, Fayetteville, for defendant-appellant.

MITCHELL, Judge.

The defendant testified in his own behalf and also offered several witnesses who testified as to his good character and reputation in the community in which he lived. The trial court gave the following instructions with regard to this evidence.

Members of the Jury, evidence has been received in this case with regard to the defendant's reputation. Although good character and reputation is not an excuse for crime, the law recognizes that a person of good character may be less likely to commit a crime than one who lacks that character. Therefore, if you believe from the evidence that the defendant has a good character, you may consider that fact in your determination of the defendant's guilty [sic] or innocence and give it such weight as you decide it should receive in connection with all of the other evidence.

The defendant assigns as error the failure of the court to instruct the jury that his character evidence could also be considered as bearing on his credibility.

Character evidence is a subordinate and not a substantive feature of the trial. The trial court, in the absence of a specific request, need not give any instruction relative to the significance of character evidence. State v. Burell, 252 N.C. 115, 113 S.E.2d 16 (1960). When the trial court instructs the jury as to the significance of character evidence, however, the instructions must be correct and complete.

The defendant testified in his own behalf. Thus, it was error for the trial court to instruct the jury that character evidence offered in his behalf could be considered as substantive evidence without additionally instructing that it could also be considered as bearing upon his credibility. State v. Wortham, 240 N.C. 132, 81 S.E.2d 254 (1954); State v. Moore, 185 N.C. 637, 116 S.E. 161 (1923), and cases therein cited. The trial court's omission in this regard was identical to those we have previously disapproved and will necessitate a new trial. State v. Adams, 11 N.C.App. 420, 421, 181 S.E.2d 194, 195 (1971).

We fully recognize that verdicts and judgments should not be set aside for mere error which is not both material and prejudicial. State v. Rainey, 236 N.C. 738, 741, 74 S.E.2d 39, 41 (1952). It is not necessary, however, for us to determine in this case whether the failure properly to instruct on the significance of character evidence introduced after a defendant has testified could ever be harmless error. Here the defendant's testimony directly contradicted the only person who identified him as the perpetrator of the crime charged. In order to reach a verdict, it was absolutely unavoidable, therefore, that the jury pass on the credibility of the defendant. Its decision in this regard was crucial and determinative of the result which ensued. *525 As to both counts in the bill of indictment, there must be a

New trial.

MORRIS and CLARK, JJ., concur.