State v. Portee ( 1976 )

BROCK, Chief Judge.

The evidence against defendant consisted primarily of the testimony of an accomplice. The defendant argues that the accomplice’s testimony is uncorroborated and therefore requires a different instruction to the jury than where the accomplice’s testimony is corroborated. The State argues that the accomplice’s testimony is corroborated, and therefore the instruction given is correct. We will not trouble ourselves to settle the argument as to whether it is corroborated. In either event a correct instruction is the same. State v. Bailey, 254 N.C. 380, 119 S.E. 2d 165 (1961).

An instruction to the jury upon how it should view the testimony of an accomplice may be given in the discretion of the trial judge, but such is not required in the absence of a timely request. State v. Roux, 266 N.C. 555, 146 S.E. 2d 654 (1966) ; 1 Stansbury’s North Carolina Evidence, Brandis Revision, § 21.

In this case counsel timely tendered an instruction concerning the testimony of an accomplice. Although the trial judge did not give the tendered instruction verbatim, he gave an instruction in substantial conformity therewith. The instruction given by the trial judge was N. C. Pattern Jury Instructions — Crim. 104.25, which we hold to be in conformity with the case law in this State. This assignment of error is overruled.

Finally defendant argues that the trial judge committed error in defining reasonable doubt. The trial judge added the following to N. C. Pattern Jury Instructions — Crim. 101.10: “It is a doubt based on reason and common sense arising out of some or all of the evidence that you have heard or lack or insufficiency of the evidence as the case may be.” It is defendant’s contention that requiring the doubt to be “based on reason” constituted a requirement that a juror be able to articulate a reason for his or her doubt. The argument is not persuasive. Although His Honor could have well omitted the above-quoted sentence, we find no prejudice to defendant. This assignment of error is overruled.

No error.

Judges Britt and Morris concur.