301 N.C. 515 | N.C. | 1980
Defendant contends the State’s evidence was insufficient to repel his motion for judgment of nonsuit made at the close of the State’s evidence. Denial of that motion constitutes his first assignment of error.
It is elementary that a motion to nonsuit requires the trial court to consider the evidence in its light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. State v. Cook, 273 N.C. 377, 160 S.E. 2d 49 (1968). Whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged had been committed and that defendant committed it, the motion to nonsuit should be overruled. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). When so considered, the evidence in this case is sufficient to support a conviction for murder in the first degree. There is substantial evidence of every material element of first degree murder, including premeditation and deliberation as well as felony murder, i.e., a murder committed in the perpetration of a felony. Defendant’s guilt or innocence of second degree murder was therefore a question for the jury. The record contains abundant evidence of an unlawful killing done with malice. Defendant cannot complain that a benevolent State saw fit to spare his life. The motion for compulsory nonsuit was properly denied.
Defendant’s motion to set aside the verdict is merely formal and requires no discussion. Such motion is addressed to the discretion of the trial court, and refusal to grant it is not reviewable absent abuse of discretion. State v. Downey, 253 N.C. 348, 117 S.E. 2d 39 (1960); State v. Reddick, 222 N.C. 520, 23 S.E. 2d 909 (1943). No abuse of discretion is shown, and the motion was properly denied. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971).
Notwithstandig the overwhelming evidence of defendant’s guilt, we have examined the entire record and find no prejudicial error. The judgment must therefore be sustained.
No error.