State v. Dial, 248 S.E.2d 366 (NC Ct. App. 1978)

State v. Dial, 248 S.E.2d 366 (NC Ct. App. 1978)

State: North Carolina
Date: November 7, 1978
Defendant: Dial

State v. Dial, 248 S.E.2d 366 (NC Ct. App. 1978)

 

STATE OF NORTH CAROLINA v. JAMES DIAL

No. 7816SC525

COURT OF APPEALS OF NORTH CAROLINA

38 N.C. App. 529; 248 S.E.2d 366; 1978 N.C. App. LEXIS 2232

 

September 28, 1978, Heard in the Court of Appeals

November 7, 1978, Filed

 

COUNSEL:

Attorney General Edmisten, by Assistant Attorney General William B. Ray, for the State.

Terry R. Hutchins for the defendant appellant.

 

JUDGES: Mitchell, Judge.  Judges Morris and Erwin concur.

 

OPINION BY: MITCHELL

 

OPINION

 

The defendant first assigns as error the failure of the trial court to instruct the jury concerning the law of self-defense. The trial court is required to charge on self-defense, even without a special request, when there is some construction of the evidence from which a reasonable inference could be drawn that the defendant assaulted the victim in self-defense. State v. Goodson, 235 N.C. 177, 69 S.E. 2d 242 (1952); State v. Lewis, 27 N.C. App. 426, 219 S.E. 2d 554 (1975), cert. denied, 289 N.C. 141, 220 S.E. 2d 799 (1976). An assault with the intent to kill is justified under the doctrine of self-defense only when the defendant is in actual or apparent danger of death or great bodily harm at the hands of the person he assaults. State v. Anderson, 230 N.C. 54, 51 S.E. 2d 895 (1949).

The defendant testified that immediately before the pistol fired, the prosecuting witness told him that she “had an ice pick and that she was going to get me a hold” and that she was going to “mark” him.  The defendant also testified, however, that he did not see the ice pick, and that the prosecuting witness never produced it.  When the defendant was questioned about any threatening gestures by the prosecuting witness toward him, he indicated she had made no motion at all.

This evidence constitutes at most a verbal threat to use force.  These threatening words did not in themselves give rise to actual or apparent danger of imminent death or great bodily harm. There was no evidence that words were accompanied by any manifestation of a present ability to carry them out or of an intent to carry them out immediately.  There was, therefore, nothing apparent to the defendant which would have reasonably led him to believe that he was in danger of imminent death or great bodily harm. As there was no evidence tending to show that the defendant was in actual or apparent danger of imminent death or great bodily harm, there was no evidence tending to show he acted in self-defense. Therefore, the trial court properly declined to instruct the jury on the law of self-defense.

In addition, the defendant’s own unequivocal testimony negates the possibility that the shooting of the prosecuting witness was in self-defense. He stated that he did not see the ice pick and that the prosecuting witness never produced an ice pick. He further stated that she made no motion towards him, and that he got his pistol in an attempt “to scare her to leave out or something or another,” and that he did not intend to shoot her.  The defendant’s testimony, if taken as true, did not indicate that he acted with the intent to defend himself from an attack which he felt would cause him death or bodily harm.  Instead, his testimony specifically indicated an unintentional and accidental firing of the pistol. The jury was given proper instructions as to the law of accident and misadventure by the trial court.  An additional instruction concerning the law of self-defense would not have been supported by the evidence and was properly omitted from the instructions to the jury.

The defendant next assigns as error the failure of the trial court to instruct the jury as to his right to order the prosecuting witness from his home and as to the degree of force he might justifiably use to remove her from his home if she did not leave voluntarily.  In certain cases, a defendant may justify an intentional assault on the ground that it was made in an effort to defend his home from attack or to evict trespassers. State v. Spruill, 225 N.C. 356, 34 S.E. 2d 142 (1945). In this case, however, the defendant specifically denied that he intentionally shot the prosecuting witness. If he did not shoot her intentionally, he could not have shot her with the intention of evicting a trespasser. Instead, the shooting would have been accidental. Therefore, the evidence did not require an instruction concerning the defendant’s right to use force in defense of his home or to evict a trespasser.

The defendant next assigns as error instructions by the trial court to the jury, after the jury had begun its deliberations in the case.  Those instructions included the statement that: “I don’t want you to consider that I am trying to force or coerce you in any way to reach a verdict, but it is your duty to reconcile your differences and reach a verdict if it can be done without any surrender of one’s conscientious convictions.” The defendant contends that the quoted portion of the instructions lessened the burden of proof which the State was required to bear from that of proof beyond a reasonable doubt to proof “as you can agree without violating your conscientious convictions.” We do not agree.  The instructions of trial courts to juries must be read contextually, and an excerpt will not be held prejudicial if a reading of the instructions in their entirety leaves no reasonable ground to believe that the jury was misled.  State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978). A reading of the trial court’s instructions in this case makes it clear that the trial court merely encouraged the jurors to agree upon a verdict if they could do so in good conscience and did not alter the burden of proof. This practice has long been approved.  Allen v. United States, 164 U.S. 492, 41 L.Ed. 528, 17 S.Ct. 154 (1896); State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978); State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975).

The defendant having received a fair trial free from prejudicial error, we find

No error.

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