43 N.C. App. 564 | N.C. Ct. App. | 1979
Defendant contends that the trial court committed error in its charge to the jury when it instructed as to intent as follows:
“I further instruct you that if you should find beyond a reasonable doubt that the defendant intended to point the pistol at some third party, that is not David Aman but some*566 other party who was in the American Legion Hut at the time of the fraycus (sic) but that he actually pointed it at David Aman then the legal effect would be the same as if the defendant had actualy intended to point the pistol at David Aman.”
Defendant asserts in his brief:
“The evidence presented to the jury, absent the excepted instruction, could have led the jurors to determine that since the gun was used in self-defense against some third party, or parties, its use was not criminal and therefore any pointing of the gun at David Aman was purely accidental and not intentional.”
We do not agree. The evidence does not present a reasonable inference of self-defense. Without such inference, defendant cannot contend that his act of pointing a gun on the occasion in question was justifiable on his part. See State v. Dial, 38 N.C. App. 529, 248 S.E. 2d 366 (1978). The record does not support defendant’s contention that the jury could have found him legally justified in defending himself by the display and threatened use of a deadly weapon. Defendant’s evidence is that he did not have a pistol or handgun on the occasion in question.
The rule is well established that a violation of G.S. 14-34 requires the intentional pointing of a gun without legal justification or excuse. Lowe v. Dept. of Motor Vehicles, 244 N.C. 353, 93 S.E. 2d 448 (1956); State v. Adams, 2 N.C. App. 282, 163 S.E. 2d 1 (1968). From our study of the charge contextually, we conclude that it presents the law fairly and clearly to the jury and is without prejudicial error. State v. Tilley, 292 N.C. 132, 232 S.E. 2d 433 (1977).
Defendant was sentenced by the trial court as follows:
“It is ADJUDGED that the defendant be imprisoned for the term of Six (6) Months in the North Carolina Department of Correction, pay a fine of $500, Cost of Court, Attorney Fees, of said sentence, the defendant shall now serve an active sentence of Four (4) Months and that the execution of the remaining Two Months of the sentence is suspended and the defendant is placed on Special Probation. Fine, Cost, and*567 Attorney Fees are to be paid under the supervision of the Probation Officer and paid in full prior to the termination of probation. The Maximum sentence the defendant could receive is Six Months.”
The authority of the trial court to impose split sentences is derived solely from statutory enactment. See In re Powell, 241 N.C. 288, 84 S.E. 2d 906 (1954).
G.S. 15A-1351(a) provides in part:
“[T]he total of all periods of confinement imposed as an incident of special probation, but not including an activated suspended sentence, may not exceed six months or one fourth the maximum penalty allowed by law for the offense, whichever is less, and no confinement other than an activated suspended sentence may be required beyond two years of conviction.”
The maximum period of confinement for the offense which defendant was convicted is six months. The maximum period to be served actively under special probation would be one and one-half months, which is one-fourth of the maximum six-months’ sentence. The sentence entered by the trial court is improper.
In the trial of defendant, we find no prejudicial error.
The sentence entered by the trial court is vacated, and this case is remanded for the entry of a proper sentence in keeping with this opinion.
