State v. Messimer , 237 N.C. 617 ( 1953 )

WiNBORNE, J.

Defendant presents on this appeal various assignments of error, some of which reveal prejudicial error. Of these-it is sufficient to point to Exception 5.

In the course of his charge to the jury the trial judge instructed in substance that if the jury find from the evidence beyond a reasonable doubt that the defendant struck the prosecuting witness with his fist, and committed an assault upon him, by so striking him, as the court has defined an assault to mean, it would become the duty of the jury to return a verdict of guilty. The instruction is a complete paragraph without reference or qualification as to the plea of self-defense relied upon by defendant. It is misleading to the jury, and prejudicial to defendant. It is true, however, that later in the charge the court gave instructions pertaining to the law of self-defense. Yet there is exception to the sufficiency of such instruction. But even if this latter exception be not well founded, the court immediately after adverting to the law' of self-defense repeated, in brief, the instruction to which exception 5 relates.

Since there must be a new trial for error pointed out, other assignments of error need not be considered. The matters to which they relate may not recur upon another trial.'

New trial.