36 N.C. App. 500 | N.C. Ct. App. | 1978
Defendant’s first assignment of error is directed to the trial court’s denial of his motions for nonsuit. Citing State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967), he contends that there was insufficient evidence that he shot the deceased and that the evidence shows, at most, no more than a mere opportunity to commit the offense. We disagree. Admittedly, no witness testified that he observed defendant fire the particular shot which was shown to have struck Sanders and caused his death. However, there was evidence that immediately before the shooting occurred, the victim left defendant’s service station without paying for the gasoline his friend had pumped into the car. A witness testified that he saw defendant fire the pistol in the direction of the car in which Sanders was riding, and this witness also testified that defendant admitted shooting at the “ ‘fellows [who] stole some gas.’ ” Another witness testified that the car was between the service station and the first stop sign when the shots were fired. This evidence is clearly sufficient to support a jury verdict finding that a crime occurred and that it was committed by defendant. Therefore, this assignment of error is overruled.
Defendant was charged with voluntary manslaughter. By his second assignment of error he contends that the trial judge erred in submitting the charge of involuntary manslaughter to the jury because there was no evidence of involuntary manslaughter. He argues that the State’s theory at trial was that defendant intentionally shot the deceased and that there was no evidence that defendant was culpably negligent. The evidence at trial showed that the victim was shot and that defendant had fired a pistol in the victim’s direction. This evidence certainly supports an inference that the shooting of the victim was intentional. However, intent can seldom be proved with objective certainty, see State v.
By his third assignment of error defendant contends that the court committed error in its charge “as it relates to circumstantial evidence.” This assignment of error is based on defendant’s exception No. 4 which singles out the following portion of the charge:
Now, members of the jury, the State in this case relies in part upon what is known as circumstantial evidence. Now, circumstantial evidence is recognized as accepted proof in a court of law. However, you must find the defendant not guilty unless all of the circumstances considered together exclude every reasonable possibility of innocence and points conclusively to guilt.
In his brief, defendant concedes that “the trial judge in this case stated the rule correctly as far as he went.” His contention is that “the judge erred in the instruction by virtue of the fact that he failed to instruct the jury that the circumstantial evidence must prove the defendant’s guilt beyond a reasonable doubt,” and he cites State v. Lowther, 265 N.C. 315, 144 S.E. 2d 64 (1965) for the proposition that when the State relies on circumstantial evidence for a conviction, the jury must be satisfied beyond a reasonable doubt of the defendant’s guilt before it can return a verdict of guilty. In our opinion, the portion of the court’s charge which is the subject of defendant’s exception No. 4 makes this abundantly clear. Moreover, it is elementary that in every criminal case, no matter what type of evidence the State relies upon, whether it be direct, or circumstantial, or both, the jury must be satisfied beyond a reasonable doubt of the defendant’s guilt before it can return a verdict of guilty. In the present case at the beginning of
We have carefully examined all of defendant’s remaining assignments of error and find no prejudicial error.
No error.