State v. Pittman, 12 N.C. App. 401

12 N.C. App. 401 | N.C. Ct. App. | 1971

VAUGHN, Judge.

The State, in a diligently prepared case, presented evidence which was more than sufficient to withstand defendant’s motions for nonsuit. Defendant’s assignments of error based on the denial of these motions are overruled.

Defendant’s assignments of error directed to the charge of the court are meritorious. In a very brief charge the court’s explanation of the law consisted largely of a reading of the statute under which defendant was charged.

“When a person is on trial, charged with having committed a statutory crime, it is not sufficient for the court merely to read the statute under which he stands indicted. The statute should be explained, the essential elements of the crime thereby created outlined and the law as thus defined should be applied to the evidence in the case, [citations omitted] This ‘calls for instructions as to the law upon all substantial features of the case.’ ” State v. Sutton, 230 N.C. 244, 52 S.E. 2d 921.

“ ‘It is the duty of the court to state the evidence “to the extent necessary to explain the application of the law” arising thereon.’ ” Seed Co. v. Mann, 258 N.C. 771, 129 S.E. 2d 488. In this charge the court made no reference to the evidence except in a short statement as to the contentions of the parties. This is generally held to be insufficient. Bulluck v. Long, 256 N.C. 577, 124 S.E. 2d 716; Brannon v. Ellis, 240 N.C. 81, 81 S.E. 2d 196.

Under the facts of this case, it was also error for the court to fail to submit for jury consideration the lesser included offense of nonfelonious breaking or entering.

For prejudicial errors in the charge of the court there must be a new trial.

New trial.

Judges Brock and Graham concur.