14 N.C. App. 86 | N.C. Ct. App. | 1972
Defendant contends that the trial judge committed error in failing to properly instruct the jury as to the intensity of proof required of a defendant in order to establish the defense of self-defense. The defendant argues that the judge did not properly charge o.n what was meant by the term “to the satisfaction of the jury.” The judge charged:
“Even, if the State proves the elements of murder in second degree, the crime may be reduced to manslaughter if the act is done without malice, or may be excused altogether if the killing was in self-defense. The defendant has the burden of proving, not beyond a reasonable doubt, but to your satisfaction, the absence of malice or that the killing was in self-defense.”
In the case of State v. Freeman, 275 N.C. 662, 170 S.E. 2d 461 (1969), the Supreme Court said:
*89 “ . . . (W)hen the burden rests upon an accused to establish an affirmative defense or to rebut the presumption of malice which the evidence has raised against him, the quantum of proof is to the satisfaction of the jury— not by the greater weight of the evidence nor beyond a reasonable doubt — but simply to the satisfaction of the jury. Even proof by the greater weight of the evidence — a bare preponderance of the proof — may be sufficient to satisfy the jury, and the jury alone determines by what evidence it is satisfied, (citation omitted.)
If there be evidence sufficient to establish an affirmative defense or to rebut the presumptions which arise against the defendant when a killing results from his intentional use of a deadly weapon, ‘[T]he accepted formula and the one that should be used if risk of error is to be avoided, is that the defendant has the burden of proving his defense (or mitigation) “to the satisfaction of the jury— not by the greater weight of the evidence nor beyond a reasonable doubt — but simply to the satisfaction of the jury.’” Stansbury, N. C. Evidence § 214 (2d Ed. 1963). (Emphasis added.)”
Although the trial judge would have been well advised to have used the above-quoted language from the Freeman case, we are of the opinion and so hold that when the charge is read as a whole, no prejudicial error appears therein with respect to the intensity of proof required of a defendant in order to establish the defense of self-defense.
The defendant also contends that the trial judge committed error in submitting to the jury the lesser included offense of manslaughter; that under the evidence, the question of his guilt of manslaughter did not arise.
“Manslaughter is the unlawful killing of a human being, without malice, express or implied, without premeditation or deliberation, and without the intention to kill or inflict serious injury.” 4 Strong, N. C. Index 2d, Homicide, § 6.
While the evidence of the State supported the charge on murder, the testimony of the defendant required the trial judge to submit the question of manslaughter to the jury.
No error.
