State v. Hooker

90 S.E.2d 690 (1956)

243 N.C. 429

STATE v. Willie Garfield HOOKER, Charlie Holden, and John Edward Williams.

No. 724.

Supreme Court of North Carolina.

January 13, 1956.

*691 Jennings G. King, Laurinburg, for defendant Hooker, appellant.

Wm. R. Rodman, Jr., Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

WINBORNE, Justice.

In apt time defendant, appellant, in writing requested the trial court to give these special instructions:

"1. In North Carolina, a defendant may be convicted upon the unsupported testimony of an accomplice, if the jury is satisfied from such testimony and beyond a reasonable doubt of his guilt; and, in this case, the witnesses Purcell and Williams are which is known in law as accomplices; and their testimony as to the guilt of the defendant is unsupported by any other evidence. "2. However, the court further instructs you that it is dangerous to convict a defendant upon the unsupported testimony of an accomplice; that it will be dangerous to convict the defendant in this case upon the testimony of Purcell and Williams, although it is your duty to do so if their testimony has satisfied you beyond a reasonable doubt of the defendant's guilt; and that it is your duty to scrutinize their testimony with caution and with care and in the light of their interest and bias, if any, in the case."

The court refused to give either of these instructions, and to the failure to do so, defendant excepted, and assigns same as error.

While the court is not required to give the instruction in the exact language of the request, if request be made for a specific instruction, which is correct in itself and supported by evidence, the court must give the instruction at least in substance. State v. Booker, 123 N.C. 713, 31 S.E. 376; State v. Henderson, 206 N.C. 830, 175 S.E. 201; State v. Pennell, 232 N.C. 573, 61 S.E.2d 593.

Indeed, here the requested instructions find support in decisions of this Court. State v. Barber, 113 N.C. 711, 18 S.E. 515; State v. Williams, 185 N.C. 643, 116 S.E. 570; State v. Ashburn, 187 N.C. 717, 122 S.E. 833.

However, the court did give general instructions in this respect. But defendant contends, and we think rightly so, that the charge as given by the court failed to cover substantially the matters included in the requested instruction in that: The court failed to instruct the jury (1) "that Purcell and Williams were actually accomplices, according to their testimony," and (2) "that their testimony as to defendant's participation in the alleged offense was unsupported by any other evidence in the case."

For error thus pointed out, there must be a

New trial.