No. 754SC891 | N.C. Ct. App. | Jul 21, 1976
Defendants first contend that the court erred in failing to instruct the jury with regard to the nature and character of corroborative evidence immediately upon its admission. “Although a preferable procedure would have been for the court to give the requested instruction at the time the request was made and in conjunction with the admission of this evidence,” State v. Branch, 288 N.C. 514" court="N.C." date_filed="1975-12-17" href="https://app.midpage.ai/document/state-v-branch-1301490?utm_source=webapp" opinion_id="1301490">288 N.C. 514, 534, 220 S.E. 2d 495, 509 (1975), no prejudicial error was committed here since the court, in its charge, correctly instructed the jury to limit the proffered testimony to corroborative purposes. The record shows that the purpose for which the evidence was being received was announced in the presence of the jury by defense counsel. The judge agreed with his request for an instruction and agreed to give the requested instruction in his final charge, which he
Defendants next contend that the court erred in overruling their motions for nonsuit. We find no merit in this contention. Considering the evidence in the light most favorable to the State, it is apparent that there was sufficient evidence for the jury to consider in reaching its findings and verdicts. State v. McNeil, 280 N.C. 159" court="N.C." date_filed="1971-12-15" href="https://app.midpage.ai/document/state-v-mcneil-1275468?utm_source=webapp" opinion_id="1275468">280 N.C. 159, 185 S.E. 2d 156 (1971).
The defendants’ third contention is that the court erred in its charge as to the definitions of reasonable doubt. They contend the court failed to charge that reasonable doubt can arise from a lack of evidence. In the recent case of State v. Butler, 21 N.C. App. 679, 205 S.E. 2d 571 (1974), Judge Campbell wrote on this point as follows:
“No error was committed in the instant case for the judge did not charge ‘that a reasonable doubt is a doubt based upon reason and common sense and growing out of the evidence in the case.’ It is when those words are used that it is error not to go further and add ‘or the lack of evidence or from its deficiency.’ ”
In the instant case the judge charged the jury:
“A reasonable doubt as that term is employed in the administration of criminal law would be an honest substantial misgiving. A misgiving ordinarily generated by the insufficiency of the evidence and an insufficiency which failed to satisfy your conscience and reason as to the guilt of the accused.”
The charge, read contextually, did not limit the question of reasonable doubt to the evidence of the case. The charge made it clear that lack of evidence could be considered by the jury. Moreover, the judge thoroughly explained the reasonable doubt standard. The instruction is free from prejudicial error.
Finally, defendants argue that the trial judge, in his charge to the jury, expressed an opinion as to the guilt of defendants by calling the State’s witness Carr an accomplice of the defendants. When restating the testimony of Carr, the judge said:
“Mr. Carr testified in this case and Mr. Carr is a defendant but he is not on trial before this jury. He is what the*235 court will classify as an accomplice and I will describe that to you in some greater detail later on.”
Defendants contend they were prejudiced by this statement.
Following his restatement of the evidence, the judge gave instructions on credibility, the manner in which the jury was to consider the evidence and how the jury was to consider the testimony of the defendants. At this point, as part of the charge concerning the credibility of defendants as witnesses, the judge carefully pointed out defendants’ contentions that they were not accomplices. He defined the term “accomplice,” discussed the manner in which the jury should treat the testimony of an accomplice, and added:
“ . . . Mr. Carr is not on trial with these defendants. If you find that the witness [Mr. Carr] was an accomplice you shoud likewise examine his testimony with care and caution.
If after doing so, however, you believe his testimony then you should give it the same credibility that you would any other believable evidence which you have heard in this case.” (Emphasis added.)
Finally, the judge was careful to state that he had no opinion in the case. Taken in their totality, the judge’s instructions do not amount to prejudicial error.
The defendants had a fair trial free of prejudicial error.
No error.