State v. Tart

Annotate this Case

184 S.E.2d 842 (1971)

280 N.C. 172

STATE of North Carolina v. Marion Edward TART.

No. 20.

Supreme Court of North Carolina.

December 15, 1971.

*844 Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

Joseph B. Chambliss, Clinton, for defendant-appellant.

PER CURIAM.

All of defendant's thirteen assignments of error are directed to portions of the court's charge.

Assignments Nos. 3 and 12 are not discussed in defendant's brief and therefore are deemed abandoned.

Assignments Nos. 1 and 2 relate to two brief excerpts from the court's review of the evidence offered by defendant. Assignments Nos. 4, 5, 6, 7 and 8 relate to excerpts from the court's review of the State's contentions. Assignments Nos. 9 and 10 relate to excerpts from the court's review of defendant's contentions. None of the statements challenged by these assignments was called to the attention of the trial judge. Seemingly, at trial, defendant's counsel did not consider defendant was prejudiced thereby.

"[I]t is the general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an oportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal." State v. Virgil, 276 N.C. 217, 230, 172 S.E.2d 28, 36 (1970), and cases there cited. After careful consideration, we have concluded that the matters asserted in these assignments are of such nature as to call for application of the quoted salutary rule.

Assignment No. 11 is directed to an isolated instruction relating to defendant's right of self-defense. In our view, this instruction was not unfavorable to defendant and particular discussion thereof is unnecessary.

Assignment No. 13 is formal.

It was the province of the jury to resolve the conflicts in the evidence and find the facts. The jury did so and returned a verdict adverse to defendant. Finding no error of law, the verdict and judgment will not be disturbed.

No error.