State v. Billinger , 9 N.C. App. 573 ( 1970 )

176 S.E.2d 901 (1970)

STATE of North Carolina
v.
Joseph A. BILLINGER.

No. 7012SC522.

Court of Appeals of North Carolina.

October 21, 1970.

Atty. Gen., Robert Morgan, by William W. Melvin and T. Buie Costen, Asst. Attys. Gen., for the State.

Philip A. Diehl, Raeford, for defendant appellant.

BRITT, Judge.

In his first assignment of error defendant contends that the in-court identification of him given by the witness Long was tainted by an illegal out-of-court viewing of the defendant by the witness, therefore, was inadmissible. Suffice to say we have carefully considered this contention and the authorities cited by defendant in support thereof but conclude that it is without merit. The assignment of error is overruled.

In his second assignment of error defendant challenges the correctness of the following instruction of the trial judge to the jury:

"I am allowing the defendant's motion for nonsuit on that first count and as all the evidence tends to show he did stop there; so the only question before you is whether the defendant is guilty or not guilty of a second count in the bill, which I am consolidating all in one count, that of failing to give certain specified information and failing to render reasonable assistance to injured persons; that is Katie Maxwell McInnis, the wife of the witness who testified, Mr. Smith McInnis, Mr. Smith McInnis and Mrs. J. D. Maxwell, Smith McInnis' mother-in-law."

Defendant contends that in his portion of the charge the court expressed an opinion as to "whether a fact is fully or sufficiently proven" in violation of G.S. § 1-180. We are constrained to agree with his contention. It is well settled that when a defendand pleads not guilty the burden is on the State to prove every element of the offense beyond a reasonable doubt 3 STRONG N. C. Index 2d, Criminal Law, § 112, pp. 4-5. In the instant case as submitted to the jury one of the elements of the offense necessary for the State to prove beyond a reasonable doubt was that defendant was the driver of the automobile which collided with the automobile operated by Mr. McInnis. We think the jury could reasonably conclude from the challenged instruction that the court was of the opinion that the defendant "did stop", therefore was the driver of the offending automobile. The assignment of error is sustained.

In his third assignment of error, defendant challenges the following instruction to the jury:

"The State further contends and says that you may make reasonable inferences from the evidence and the evidence in this case tends to show that the assistant chief of police made an investigation, that he went to the home of the registered owner and the evidence tends to show after going to the home of the registered owner, he went directly to the home of the defendant and it was not long after that the officer took out a warrant for the defendant before a magistrate, for defendant's arrest; that the only inference you can draw from such evidence, and the only reasonable inference is that the investigation revealed that the defendant was the operator." (Emphasis ours)

It is well settled in this jurisdiction that while the trial court is not required to state the contentions of the litigants at all, when the court does undertake to state the contentions of one party it must also give equal pertinent contentions of the opposing party. 3 STRONG N.C. Index 2d, Criminal Law, § 118, p. 28; State v. King, 256 N.C. 236, 123 S.E.2d 486 (1961). In the case at bar we think the able trial judge in stating contentions inadvertently failed to give "equal stress" to the defendant. Furthermore, we do not think the inference stated in the last quoted instruction was a reasonable one for the court to include in its charge to the jury. State v. Wyont, 218 N.C. 505, 11 S.E.2d 473 (1940). The assignment of error is sustained.

For errors in the charge prejudicial to the defendant, there must be a

New Trial.

CAMPBELL and VAUGHN, JJ., concur.