State v. McCullough , 5 N.C. App. 173 ( 1969 )

Campbell, J.

The defendant now asserts that the lineup identification by the witness Perry was invalid and that this invalidity made the in-court identification of the defendant likewise invalid. The defendant bases his claim of invalidity of the lineup identification on the fact that his attorney at that time, Mr. Kornegay, did not know that the purpose was to identify the defendant in connection with an armed robbery charge and actually thought that the purpose of the lineup was to identify the defendant in connection with a charge of breaking and entering. There is no merit in this position. In order to have a lawful lineup identification, a defendant is entitled to be represented by an attorney if he so desires. In the instant case, the defendant was represented by an attorney. The attorney stated that in his opinion the lineup was proper, fair and legal. The fact that the lineup was for the purpose of identifying the defendant in connection with a felonious armed robbery charge, rather than with a charge of felonious breaking and entering, would make no difference whatsoever in the validity of the lineup itself.

This assignment of error is without merit.

The defendant assigned as error the denial of the defendant’s motion for judgment as of nonsuit at the close of all of the evidence. In his brief, however, the defendant states:

“The defendant at this time expressly abandons assignment of error No. 2.”

The remaining assignment of error by the defendant was that the trial court committed error in the charge to the jury as to the defense of alibi. The defendant asserts that the trial judge failed to charge the jury that the defendant was not required to satisfy the jury as to the truth of his allegations of alibi beyond a reasonable doubt, and that the trial court erroneously placed the burden or proof of alibi upon the defendant.

The trial court actually charged the jury as follows:

“The defendant relies in part upon what is known in law as an alibi. The word 'alibi’ means to be elsewhere. If he were elsewhere at the time of the commission of a crime, of course, he could not be guilty of the commission of such a crime. The defendant’s evidence of alibi is evidence tending to deny or disprove one of the essential facts which the State must prove and that is the identity of the defendant as the person committing the violation of the law. (The defendant is not required to prove an alibi beyond a reasonable doubt or to the satisfaction of the jury. If the evidence of alibi together with the other evidence, alone or together with the other evidence, raises in the mind of the jury a reasonable doubt as to his identity as the person committing the alleged offense, then he is entitled to a verdict of not guilty).”

The defendant assigns as error the parenthetical portion.

This charge with regard to alibi is in conformity with the legal principles stated by the Supreme Court of North Carolina. The authorities are reviewed in State v. Allison, 256 N.C. 240, 123 S.E. 2d 465, and nothing would be gained by a further discussion here.

We think the charge as to alibi in the trial court did not place the burden of proof upon the defendant, and there was no prejudicial error in the charge when considered contextually.

The defendant had a fair and impartial trial, free of prejudicial error.

Affirmed.

MoRris and Paricer, JJ., concur.