State v. Wall , 6 N.C. App. 422 ( 1969 )

Campbell, J.

The defendant Wall preserved and brought forward for review four questions.

1. The refusal of the trial court to try each defendant separately.

2. Error in the charge in defining the term “reasonable doubt.”

3. Error in the charge in failing to properly explain to the jury the consideration to be given to the testimony of an accomplice.

4. Error in the charge with regard to the privilege of the defendants to remain off the witness stand and not testify.

The defendant Walton preserved and brought forward two questions:

1. Error in the charge in defining the term "reasonable doubt.”

2. Error in the charge in failing to instruct the jury that the burden of proof throughout the trial is upon the State.

The two defendants were each charged with the armed robbery of the A & P Store on 15 February 1969. Walton presented as a defense an alibi. Wall presented no evidence but relied on the weakness of the State’s case. These defenses are not inconsistent.

The granting or refusing of the motion for a separate trial was a matter which rested in the sound discretion of the trial judge. State v. McCabe, 1 N.C. App. 461, 162 S.E. 2d 66. In the instant case the defendant Wall fails to show any abuse of discretion by the trial judge or that he was in any way prejudiced by the consolidation of the cases.

We have reviewed the charge given by the trial judge to the jury, including those portions to which each of the defendants has directed an exception. While the charge as to “reasonable doubt” did not use the exact language which the defendants say the court should have used, and was not the most adept wording, nevertheless, the wording did not prejudice the defendants. Also, it is within the sound discretion of the trial judge, in the absence of a request to do so, to voluntarily refer to the rule of scrutiny of an accomplice’s testimony. State v. Bailey, 254 N.C. 380, 119 S.E. 2d 165. There was no prejudicial error in the language used in this portion of the charge.

The remaining assignments of error are without merit. We are of the opinion that the charge, when read in its entirety, correctly presented the law to the jury, and that the trial judge applied the facts of the case to the law, and that the charge was fair and in no way prejudicial to the rights of either defendant. Each defendant had a fair and impartial trial, and the jury found the facts against them.

No error.

PARKER and Graham, JJ., concur.