State v. Sellers

289 N.C. 268 | N.C. | 1976

COPELAND, Justice.

The defendant contends that the trial court erred in overruling his motion to dismiss all the charges made at the conclusion of all the evidence.

“It is elementary that, for the purpose of ruling upon a motion for judgment as of nonsuit, the evidence for the State is taken to be true, every reasonable inference favorable to the State is to be drawn therefrom and discrepancies therein are to be disregarded.” State v. Rankin, 284 N.C. 219, 223, 200 S.E. 2d 182, 185 (1973). Accord, State v. Sanders, supra; State v. Felton, 283 N.C. 368, 196 S.E. 2d 239 (1973); State v. Spencer, 281 N.C. 121, 187 S.E. 2d 779 (1972); State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967).

The State’s evidence disclosed that Jeanette Martha Grier, Jule Hutton, Otis Blackmon, Wilbur James Sanders, and the defendant had discovered that Albert Stout, Jr. was an undercover narcotics agent for the SBI. He had testified against Grier and Blackmon, and charges were still pending against Blackmon on 9 September 1974. On that date the defendant, Blackmon, Grier and Sanders interrogated Hutton about his and Stout’s roles as undercover narcotics agents. After an unknown man brought a brown bag with a Winn Dixie sign on it to the Grier house, an identical bag containing dynamite was opened and examined by the defendant. He informed Blackmon that everything was there and then had a ten minute meeting with Blackmon and Grier while Sanders held Hutton under surveillance with a gun. Later that day the defendant compelled Hutton to ride with him to Hutton’s house and to identify Stout. In this way the defendant was able to learn that Stout was meeting Hutton despite Hutton’s previous denials of any personal knowledge of Stout. Also, the defendant compelled Hutton to admit that he was an informer.

Sometime after midnight the defendant, Sanders and Hutton met Blackmon in Salisbury on a side street and drove to Stout’s car carrying a bag identical to the one in which the dynamite had been placed earlier that day. While the defendant and Blackmon had this same bag in their possession and were beside the car of Stout for about ten minutes, the hood was raised and lowered twice. In view of the above circumstances and subsequent events, the statement of the defendant upon returning from Stout’s car that “it would happen in the morning” indicated that dynamite had been planted at this time so as to detonate in the morning. The statement of Blackmon thereafter directing defendant to kill Hutton further indicated the criminal nature of their activity at that time. Around midnight Stout had parked his car for the evening of 9 September 1974, and on the morning of 10 September 1974 a little after 8:00 a.m. he was severely injured and his car was damaged when he attempted to start his car. Expert testimony indicated that a dynamite charge had been set to the ignition switch to his car and was the cause of the injuries and damage.

In' light of the foregoing legal principles, the evidence for the State was sufficient to permit the jury to find that the defendant assisted in the planning, drove some of the conspirators to the scene, and actively participated with Blackmon in putting the dynamite in the Stout automobile. This assignment of error is without merit and overruled.

The defendant also contends that the trial judge erred in the manner in which he charged the jury on the failure of the defendant to testify in his own behalf.

Counsel for the defendant in his brief says, among other things, that the court should have used the word “shall” rather than the word “should” in the following instruction to the jury:

“ . . . The fact that the defendants have not taken the stand and testified in his or her own behalf should not be considered by you against him or she [sic], or to his or her prejudice at any stage, for the defendant was exercising a right which the law gives to him.” (Emphasis supplied.)

This is without merit. An examination of the jury instruction in State v. Sanders, supra, discloses that the same judge made almost an identical charge to that given in the instant case. The same assignment of error was made in Sanders, and our Court held that the instruction was proper. On the authority of Sanders this assignment is overruled.

Defendant makes no further contentions, but because of the seriousness of the offenses, we have carefully examined the entire record and it reveals that the defendant has received a fair trial, free from prejudicial error, and we find

No error.