State v. McLain , 10 N.C. App. 146 ( 1970 )

177 S.E.2d 742 (1970) 10 N.C. App. 146

STATE of North Carolina
v.
Angelo McLAIN.

No. 7010SC599.

Court of Appeals of North Carolina.

December 16, 1970.

Robert Morgan, Atty. Gen., and James L. Blackburn, Staff Atty., Raleigh, for the State.

Jordan, Morris & Hoke, by Robert P. Gruber, Raleigh, for defendant appellant.

HEDRICK, Judge.

The defendant first assigns as error the court's failure to instruct the jury on the defense of intoxication. In State v. Cureton, 218 N.C. 491, 11 S.E.2d 469 (1940), Barnhill, J., stated the rule with respect to the defense of intoxication as follows:

"While intoxication is an affirmative defense no special plea is required. However, to avail the defendant and require the court to explain and apply the law in respect thereto, there must be some evidence tending to show that the defendant's mental processes were so overcome by the excessive use of liquor or other intoxicants that he had temporarily, at least, lost the capacity to think and plan. As to this, he is not relegated to his own testimony. It is sufficient if the testimony of any witness tends to establish the fact. But it must be made to appear affirmatively in some manner that this defense is relied upon to rebut the presumption of sanity before the doctrine becomes a part of the law of the case which the judge must explain and apply to the evidence."

Although there was evidence in the instant case that the defendant had been drinking, and the defendant himself testified that he was "pretty high" and that he was not fully himself, there is no evidence that the defendant's mental processes were deranged by intoxication but, on the contrary, the defendant's own evidence tends to show that he was in complete control of his mental faculties. There was no prayer for special instructions, nor did the defendant indicate during the trial that he was relying on the defense of intoxication. This assignment of error is not sustained.

Next, the defendant contends the court committed error by denying his motion for a new trial for alleged misconduct of the jury. The record reveals that during the jury's deliberation a definition of uttering copied from a dictionary by one of the jurors was taken into the jury room. The jury made inquiry of the court as to the definition of uttering, and told the judge what had happened. Judge Ragsdale told the jury to "disregard in every way" the dictionary definition and then proceeded to repeat his instructions as to the charge against the defendant of uttering the forged check. It was improper for the jury to obtain and read a dictionary definition of one of the offenses charged in the bill of indictment; however, the able trial judge properly instructed the jury to disregard the definition taken from the dictionary and the defendant has not shown that he was prejudiced in any way by the conduct of the jury. In Re Will of Hall, 252 N.C. 70, 113 S.E.2d 1 (1960).

We have carefully considered the record in this case and conclude that the defendant had a fair trial in the superior court free from prejudicial error.

No error.

CAMPBELL and BRITT, JJ., concur.