26 N.C. App. 73 | N.C. Ct. App. | 1975
We find that the only assignment of error which merits discussion relates to the charge of the trial court in stating the contentions of the State and failing to give the contentions of the defendant.
The trial judge is not required by G.S. 1-180 or other law to give the contention of the parties; but when he does state the contentions of the State on a particular aspect of the case, it is error to fail to state defendant’s opposing contentions arising out of the evidence, or lack of the evidence, on the same aspect of the case. State v. Thomas, 284 N.C. 212, 200 S.E. 2d 3 (1973) ; State v. Cook, 273 N.C. 377, 160 S.E. 2d 49 (1968); State v. King, 256 N.C. 236, 123 S.E. 2d 486 (1962) ; State v. Lane, 18 N.C. App. 316, 196 S.E. 2d 597 (1973).
In his charge to the jury the trial judge made no attempt to present fully the theories or contentions of either the State or the defendant. We find twice in the charge the use of the word “contends”, both occurring in a single paragraph when the trial judge defined the elements of breaking or entering.
It is apparent that the word “contends” was used by the trial court in referring to a limited portion of the State’s evidence for the purpose of making an explanation of what constituted a “breaking” and what constituted an “entry”, or a recital of what the State’s evidence “tended to show” as to that phase of the case in order properly to explain and apply the law thereto. It is noted that the defense was alibi, and that there was no conflicting evidence as to the break-in and entry of the store building. The trial judge did not invade the province of the jury with respect to inferences to be drawn from the facts in evidence. While we do not approve the use of the words “contends and says” in referring to the evidence for the purpose of explaining the law applicable thereto, we find that under the circumstances of this case, there was no prejudicial error.