State v. Mabery , 283 N.C. 254 ( 1973 )

195 S.E.2d 304 (1973) 283 N.C. 254

STATE of North Carolina
v.
Fred MABERY.

No. 31.

Supreme Court of North Carolina.

April 11, 1973.

Atty. Gen. Robert Morgan, Asst. Attys. Gen. Robert G. Webb and Charles M. Hensey, for the State.

Richard Powell, Greenville, Samuel S. Mitchell, Raleigh, for defendant.

PER CURIAM.

The sole question presented for decision is whether there is prejudicial error in the trial judge's additional instructions on reasonable doubt.

Counsel for defendant correctly concedes that the court's original instructions were ample and free from error. State v. Phillip, 261 N.C. 263, 134 S.E.2d 386; State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133.

After the case had been submitted to the jury, the foreman of the jury requested additional instructions on reasonable doubt. In answer to this request Judge Cohoon additionally charged:

"I will preface that instruction by saying that the defendant is presumed to be innocent until the contrary, that is, his guilt is proved to your satisfaction beyond a reasonable doubt. If you have a reasonable doubt as to whether or not the guilt of the defendant has been proven, he is entitled to be acquitted. The State does not have to prove the charge beyond all possible doubt before a conviction can be had. But the State must prove the defendant guilty beyond a reasonable doubt before you can convict. The phrase reasonable doubt means just what the words imply. It is a doubt based upon reason, arising from a thorough and impartial consideration of all the evidence in the case, or lack of evidence as the case may be. It is that state of mind in which you do not feel an abiding conviction amounting to a moral certainty of the truth of the charge. While you cannot convict the defendant on mere surmise or conjecture, neither should you go outside the evidence to imagine doubt to justify an acquittal. If, after careful deliberation, you are convinced to a moral certainty that the defendant is guilty of the crime charged, then you are satisfied beyond a reasonable doubt; otherwise, not. . ."

A trial judge is not required to define the phrase "beyond a reasonable doubt" unless specifically requested to do so. However, when he undertakes to do so the definition should be substantially in accord with definitions approved by this Court. State v. Flippin, 280 N.C. 682, 186 S.E.2d 917; State v. Hammonds, supra.

Judge Cohoon's additional charge on reasonable doubt is substantially in accord with definitions heretofore approved by this Court. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745; State v. Flippin, supra; State v. Hammonds, supra; State v. Brackett, 218 N.C. 369, 11 S.E.2d 146; State v. Schoolfield, 184 N.C. 721, 114 S.E. 466.

There was no error in the trial judge's additional instructions on reasonable doubt.

We have carefully examined this entire record and find no prejudicial error.

No error.