State v. Ransom , 1968 N.C. App. LEXIS 982 ( 1968 )

Brock, J.

Defendant’s entire evidence was addressed to her defense that she did not sell any whiskey to the ATU agent, that she was sick in bed, and that no one except her one witness and a relative came to her home on the occasion in question.

In stating her contentions the trial judge charged the jury, inter alia, as follows:

. . And she relies upon the principle of law which the Court will give you, also, at least she contends that you should scrutinize the testimony of the witness, in that he was engaged in promoting the transaction, and that he was at least an aider and abettor, or an accomplice, in the crime.

. . And the defendant contends he was an accomplice, in that he was aiding and abetting her in the sale by purchasing the liquor, and if he was not a principal, that he was at least an accessory before the fact, in inducing her to make the sale to him.

“Our Court has said that in passing upon an accomplice, you, the jury, should scrutinize his testimony closely, whether it is supported or unsupported, and you should only believe the same, if you do believe it, after careful and cautious consideration and your consideration of his testimony should be in connection with the fact that he is interested in the event, and the further fact that he, upon his own admission, is guilty as an accomplice of the crime charged against the defendant.

“The defendant contends that you should scrutinize the testimony of the witness Brady, in the light of that instruction, and that you should not accept his testimony as true.”

It is obvious that the defendant’s evidence does not make such a contention. The contention given by the trial judge may be proper where a defendant contends entrapment; but here the defendant emphatically denies making a sale of whiskey to the State’s witness. In this case the able and experienced trial judge has made a fundamental misconstruction of defendant’s contention.

Ordinarily a misstatement of the contentions of the parties must be brought to the Court’s attention in order that it can be corrected before verdict; otherwise objection thereto will be deemed to have been waived. State v. Watson, 1 N.C. App. 250, 161 S.E. 2d 159. However, a fundamental misconstruction of defendant’s contentions will be held error notwithstanding the absence of objection at the time. 3 Strong, N. C. Index 2d, Criminal Law, § 118, p. 29.

New trial.

BRItt and Parker, JJ., concur.