State v. Hickman , 21 N.C. App. 421 ( 1974 )

204 S.E.2d 718 (1974) 21 N.C. App. 421

STATE of North Carolina
v.
Robert Lee HICKMAN.

No. 743SC221.

Court of Appeals of North Carolina.

May 1, 1974.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

Ernest C. Richardson, III, New Bern, for defendant-appellant.

CAMPBELL, Judge.

The defendant assigns as error the failure of the trial court to charge on self-defense and the failure of the trial court in its charge to explain and define the element of assault. Under G.S. § 1-180 it is the duty of the trial court to declare and explain the law arising from the evidence even without a special request for instruction. The defendant's evidence, even though contradicted by the State, raised an issue of self-defense. Whether the defendant's evidence is less credible than the State's evidence is an issue for the jury, not the trial judge. The failure of the trial court to charge on self-defense was error. State v. Greer, 218 N.C. 660, 12 S.E.2d 238 (1940); State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965); State v. Chaney, 9 N.C.App. 731, 177 S.E.2d 309 (1970); State v. Broadnax, 13 N.C.App. 319, 185 S.E.2d 442 (1971).

The defendant was convicted of the offense of an assault with a deadly weapon inflicting serious injury. In instructing on this offense, the trial judge charged the jury:

"Now, I instruct you that if the State has satisfied you beyond a reasonable doubt that on or about 8:00 P.M., January 27, 1973, the defendant, Robert Hickman, assaulted Clayton Fenner with a knife, a deadly weapon thereby inflicting serious bodily injury upon him, it would be your duty to return a verdict of guilty of the lesser offense of assault with a deadly weapon with intent—inflicting serious injury. If you do not so find, or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty."

To this instruction the defendant excepted and assigned it as an error.

At no place in the charge did the trial judge instruct the jury as to what the term "assault" means or what constitutes an assault. An assault is a legal term with which jurors are not apt to be familiar. We think it incumbent upon the trial judge to define or otherwise explain to a jury the meaning of the legal term "assault".

In State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965), the North Carolina Supreme Court stated:

"The only instruction given with respect to the law of the case consisted of a reading of the pertinent statute, G.S. 14-87. In giving instructions the court is not required to follow any particular form and has wide discretion as to the manner in which the case is presented to the jury, but it has the duty to explain, without special request therefor, each essential element of the offense and to apply the law with respect to each element to the evidence bearing thereon. 1 Strong: N.C. Index, Criminal Law, S.S. §§ 105, 107. Ordinarily the reading of the pertinent statute, without further explanation, is not sufficient."

For the errors pointed out we grant a new trial.

New trial.

MORRIS and VAUGHN, JJ., concur.