Annotate this Case

100 S.E.2d 70 (1957)

246 N.C. 677

Carl B. WORLEY and wife, Rena Worley, v. CHAMPION MOTOR COMPANY, Tyrus H. Andrews and Walter Clark, Trustee.

No. 18.

Supreme Court of North Carolina.

October 9, 1957.

*71 Morgan, Ward & Brown, Waynesville, for defendants, appellants.

John M. Queen, Frank D. Ferguson, Jr., Waynesville, Ward & Bennett, Asheville, for plaintiffs, appellees.

*72 HIGGINS, Justice.

The defendant's assignments of error present two questions: (1) Was the plaintiffs' evidence of duress, taken in the light most favorable to them, sufficient to go to the jury? (2) Did that portion of the court's charge specifically objected to constitute reversible error?

1. Whether evidence is sufficient to go to the jury is a question of law to be resolved by the court. In passing on that question the evidence favorable to the defendant is disregarded. All conflicts are resolved in favor of the plaintiffs. Viewed in this light, the plaintiffs' evidence was sufficient to survive the motion for nonsuit. The first question must be answered in the affirmative.

2. The court charged the jury:

"Now it is necessary in this case that the court undertake to lay down to you certain principles of law which the court deems necessary for you to apply to the facts as you find them." "That if any writing obtained by duress from one party to another, then such writing is void. If any writing or contract is made to prevent or forestall a prosecution of a felony, it would be void and of no effect, as being against public policy."

Only that part of the charge in italics is the subject of an exceptive assignment. Nevertheless the preceding sentence serves to emphasize the harmful effect of that part of the charge to which the assignment is directed. The complaint does not allege, the evidence does not disclose, and the issue does not embrace any agreement to forego prosecutionto compound a felony. Corbett v. Clute, 137 N.C. 546, 50 S.E. 216; Lindsay v. Smith, 78 N.C. 328. In order to justify a charge on the effect of an agreement to compound a felony, three things were necessary: (1) Sufficient allegation. Maddox v. Brown, 232 N.C. 542, 61 S.E.2d 613. (2) Evidence to support the allegation. Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558. (3) A proper issue. Irvin v. Southern R. Co., 164 N.C. 5, 80 S.E. 78. All were lacking. "* * * a plaintiff cannot recover except on the cause of action set up in his complaint." Cook v. Hobbs, 237 N.C. 490, 75 S.E.2d 322, 323. "The jury should see the issues stripped of all redundant and confusing matters, and in as clear a light as practicable." Stern Fish Co. v. Snowden, 233 N.C. 269, 63 S.E.2d 557, 559. "The court should never give the jury instructions based upon a state of facts not presented by some reasonable view of the evidence produced on the trial, * * *." State v. McCoy, 236 N.C. 121, 71 S.E.2d 921, 923.

We conclude the trial court went beyond the complaint, the evidence, and the issue in its charge with respect to compounding a felony. For that reason the defendant is entitled to go before another jury.

New trial.