38 N.C. App. 509 | N.C. Ct. App. | 1978
The defendant first assigns as error the failure of the trial court to instruct the jury with regard to a possible verdict of
Both G.S. 15-169 and 170 allow a conviction of a lesser included offense of the crime charged when there is evidence tending to show that the defendant may be guilty of such lesser offense. However, the trial court should instruct the jury on a lesser included offense “when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.” State v. Lampkins, 286 N.C. 497, 506, 212 S.E. 2d 106, 111 (1975) (citations omitted), cert. denied, 428 U.S. 909, 49 L.Ed. 2d 1216, 96 S.Ct. 3220 (1976).
The State’s uncontroverted evidence in this case tended to show that the defendant pointed a shotgun in the direction of the Sheriff and was weaving back and forth. This evidence would permit the jury to infer that the defendant pointed the gun at the Sheriff. The uncontroverted evidence of the State also indicated that the Sheriff was in the performance of his duties of investigating the alleged crime of assault with intent to commit rape. The State’s evidence also indicated that the defendant had been previously arrested by the Sheriff and, therefore, knew he was a law enforcement officer. Additionally, the Sheriff informed the defendant that the law had him surrounded.
No evidence before the trial court tended to indicate that the defendant did not know that the Sheriff was a law enforcement officer or that he was acting in the performance of his duties. No evidence of a lesser included offense having been presented, the trial court correctly declined to instruct the jury with regard to any lesser included offense.
The defendant next assigns as error the failure of the trial court to instruct the jury with regard to the defense of insanity. The defendant contends that the defense of insanity was properly raised and was supported by the evidence. We do not agree.
A defendant is considered to be legally insane and may avail himself of the defense of insanity when he was laboring under a disease or deficiency of mind or a defect of reason at the time of
The psychiatrist called to testify by the defendant stated that he could not give an opinion as to the state of mind of the defendant at the time of the alleged crime. His additional testimony that the defendant “had the possibility of losing control” was of no real probative value, as the same could be said of any person. The Sheriff testified that the defendant reminded him of a mentally disturbed person, but specifically testified that he did not know if the defendant knew what he was doing. The defendant’s mother testified that the defendant was “wild crazy,” “booze sick” and that he “didn’t have no sense.” This testimony by the defendant’s mother was entirely conclusory in nature and did not bear upon the issue of whether, at the time of the crime charged, the defendant was capable of knowing the nature and quality of his acts or of distinguishing between right and wrong in relation to such acts. The evidence of these witnesses, even if believed in its entirety, was inadequate to overcome the presumption of sanity. The trial court properly declined to instruct the jury with regard to the defense of insanity.
The defendant also assigns as error the failure of the trial court to instruct the jury that, before they could return a verdict of guilty of assault with a firearm upon a law enforcement officer in the performance of his duties, they must find the defendant possessed a specific intent beyond the intent to commit the unlawful act itself. This assignment is without merit. In order to return a verdict of guilty of assault with a firearm upon a law enforcement officer in the performance of his duties, the jury is not required to find the defendant possessed any intent beyond the intent to commit the unlawful act, and this will be inferred or presumed from the act itself. See State v. Matthews, 231 N.C.
The defendant additionally assigns as error the failure of the trial court to allow his motion for judgment of nonsuit as to the charge of assault with a firearm upon a law enforcement officer in the performance of his duties. In support of this assignment, the defendant contends that his motion should have been granted due to the fact that the evidence was contradictory. In passing upon a trial court’s denial of a motion for judgment of nonsuit, the State’s evidence is considered in the light most favorable to it and deemed true with all inconsistencies or contradictions therein disregarded. State v. Price, 280 N.C. 154, 184 S.E. 2d 866 (1971). When viewed in this light, the evidence before the trial court provided a reasonable basis upon which the jury might find that the defendant had committed the crime charged. The motion was properly denied.
The defendant received a fair trial free from prejudicial error, and we find
No error.