34 N.C. App. 491 | N.C. Ct. App. | 1977
Defendant first contends that the trial judge erred to his prejudice by not allowing him to testify on direct examination that when he shot Kenneth Harris, “I was not aware of what I was doing.” Defendant argues that this evidence was relevant to the question of his intent and admissible as part of the res gestae. Obviously, the statement was not a part of the res gestae since the excluded evidence related only to defendant’s state of mind, and not to a declaration made at the time of the commission of the crime. Assuming arguendo that the excluded statement tended to show a lack of criminal intent upon the part of the defendant, we perceive no prejudicial error in the court’s ruling since the defendant repeatedly testified that he did not intend to shoot Kenneth Harris. This assignment of error has no merit.
Defendant next contends that the court erred in denying his motion for judgment as of nonsuit. Here defendant merely argues that there was no evidence of defendant’s criminal intent. The record is replete with evidence sufficient to require submission of the case to the jury and to support the verdict.
Defendant’s sixth assignment of error is stated as follows:
*494 “The Court’s instruction to the jury as to the order in which the jury must consider charges for that the same was arbitrary and incorrect.”
The trial judge submitted the possible verdicts in the following order: guilty of assault with a deadly weapon with intent to kill inflicting serious injury; guilty of assault with a deadly weapon inflicting serious injury; guilty of assault with a deadly weapon with intent to kill; and not guilty. The judge simply submitted the offenses in the order in which they appear in the statute, G.S. 14-32. As this Court has responded to a similar contention by another defendant, “[n]o authority is cited for this position and reason does not support it.” State v. Wall, 9 N.C. App. 22, 24, 175 S.E. 2d 310, 311 (1970). This assignment of error is overruled.
Next, defendant argues that the trial judge erred in failing to define the term “assault” as it relates to the offenses submitted to the jury. The North Carolina courts have adhered to the “common law rule that an assault is an intentional offer or attempt by force and violence to do injury to the person of another.” State v. Hill, 6 N.C. App. 365, 369, 170 S.E. 2d 99, 102 (1969). In the present case the trial judge instructed the jury in connection with each offense submitted that to convict defendant it must find beyond a reasonable doubt “that the defendant assaulted Kenneth Harris by intentionally shooting him with a pistol; . . . .” This instruction is clearly distinguishable from the one disapproved in State v. Hickman, 21 N.C. App. 421, 422, 204 S.E. 2d 718, 719 (1974), where the trial judge merely instructed the jury that to return a verdict of guilty it must be satisfied that “ ‘the defendant . . . assaulted Clayton Fenner with a knife ....’” Moreover, it is substantially similar to the instruction approved in State v. Springs, 33 N.C. App. 61, 234 S.E. 2d 193 (1977). We hold that the trial judge’s instruction relating to assault was sufficient to define and explain the law arising on the evidence. This .assignment of error is overruled.
Finally, defendant assigns as error the following:
“The Court’s instruction to the jury on the element of intent, in that the Court did not extend its instructions to the lesser included offense of assault with a deadly weapon inflicting serious injury.”
We hold that the defendant had a fair trial free from prejudicial error.
No error.
