State v. Malpass , 266 N.C. 753 ( 1966 )

147 S.E.2d 180 (1966) 266 N.C. 753

STATE of North Carolina
v.
Robert Clarence MALPASS.
STATE of North Carolina
v.
William Franklin TYLER.

No. 173.

Supreme Court of North Carolina.

March 23, 1966.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, and Charles M. Hensey, Staff Atty., Raleigh, for the State.

George Rountree, III, Wilmington, for Robert Clarence Malpass, defendant appellant.

A. A. Canoutas, Wilmington, for William Franklin Tyler, defendant appellant.

PER CURIAM:

Defendants' only assignment of error is "that the Trial Court erred in failing to instruct the jury more fully as to the defendants' defense of alibi, and further, in failing to apply the law of alibi to the facts adduced in evidence of this case." This assignment of error fails to comply with the rules of this Court. "An assignment based on failure to charge should set out the defendant's contention as to what the court should have charged." State v. Wilson, 263 N.C. 533, 534, 139 S.E.2d 736, 737. Notwithstanding, we have examined the charge in its entirety and find that the judge instructed the jury in accordance with the rule laid down in State v. Spencer, 256 N.C. 487, 489, 124 S.E.2d 175, 177. An alibi is simply a defendant's plea or assertion that at the time the crime charged was perpetrated he was at another place and therefore could not have committed the crime. As the court fully explained to the jury, in order to convict either defendant of the robbery charged, the State was required to prove beyond a reasonable doubt that he was present at the time and place it occurred and that he participated in it. Such proof, of course, would demolish an alibi. The evidence in this case was simple; the issue, clear-cut. Did either one, or both, of the defendants perpetrate the crime, or was the robbery victim mistaken in his identification? The jury could not have been misled or confused by the charge.

No error.

MOORE, J., not sitting.