State v. Greene , 278 N.C. 649 ( 1971 )

180 S.E.2d 789 (1971)

STATE of North Carolina
v.
Thomas Harral GREENE, Jr.

No. 82.

Supreme Court of North Carolina.

May 12, 1971.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Sidney Eagles, and Staff Atty. Russell Walker, for the State.

Pearson, Malone, Johnson & DeJarmon by W. G. Pearson II, and C. C. Malone, Jr., Durham, for defendant appellant.

LAKE, Justice.

This Court has stated repeatedly that the Rules of Practice in the Supreme Court are mandatory and that Rules 19 and 21 require that an error asserted on appeal must be based upon an appropriate exception duly taken and shown in the record. See also, Rules 19 and 21 of the Rules of Practice of the Court of Appeals, to which court this appeal was taken. State v. Benton, 276 N.C. 641, 174 S.E.2d 793; State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666; State v. Hudler, 265 N.C. 382, 144 S.E.2d 50; State v. Strickland, 254 N.C. 658, 119 S.E.2d 781; State v. Garner, 249 N.C. 127, 105 S.E.2d 281; State v. Wiley, 242 N.C. 114, 86 S.E.2d 913; State v. Moore, 222 N.C. 356, 23 S.E.2d 31. "The assignments of error must be based upon exceptions duly noted, and may not present a question not embraced in an exception. Exceptions which appear nowhere in the record except under the purported assignments of error will not be considered." 1 Strong, N.C. Index 2d, Appeal and Error, § 24.

Even though based upon exceptions duly noted in the record and preserved in the statement of the case on appeal, assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court; Rule 28, Rules of Practice in the Court of Appeals; State v. Baldwin, 276 N.C. 690, 701, 174 S.E.2d 526; 1 Strong, N.C. Index 2d, Appeal and Error, § 45. For this reason, had the defendant's Assignments of Error Nos. 5, 6, 7, 8 and 9 been based upon exceptions duly noted and preserved in the record, they would be deemed abandoned.

In his Assignments of Error Nos. 1 and 2, the defendant contends that the Superior Court erred in denying his motions for judgment of nonsuit, both as to the charge of first degree murder and as to all charges embraced in the bill of indictment, the defendant having made such motions both at the conclusion of the State's evidence in chief and at the conclusion of all the evidence. The denial of such motions made at the conclusion of the State's evidence in chief was waived by the defendant's introduction of evidence and is not available to him on appeal. G.S. § 15-173; State v. Prince, 270 N.C. 769, 154 S.E.2d 897. Thus, only Assignment of Error No. 2, relating to the denial of the motions for judgment of nonsuit made at the close of all the evidence (erroneously stated in the assignment of error as made at the close of the defendant's evidence), could be considered on appeal had an exception appeared in the record. The defendant discusses in his brief only the denial of the motion for judgment of nonsuit as to the charge of first degree murder. Thus, under the rule above mentioned, so much of the assignment as relates to the denial of his motion for judgment of nonsuit as to the charge in the bill of indictment generally is deemed abandoned. Furthermore, the rulings of the trial court upon these two separate motions for judgment of nonsuit as to the charge of first degree murder and as to the charge of the indictment generally should have been the subjects of separate assignments of error. State v. Blackwell, 276 N.C. 714, 721, 174 S.E.2d 534.

In any event, neither branch of this assignment of error has merit. Conflicts in the evidence present questions for the jury and do not supply a basis for a judgment of nonsuit. State v. O'Neal, 273 N. C. 514, 160 S.E.2d 473; State v. Walker, 269 N.C. 135, 152 S.E.2d 133; State v. Goins and State v. Martin, 261 N.C. 707, 136 S.E.2d 97. Upon such motion, it is elementary that the evidence must be considered in the light most favorable to the State and that the State is entitled to every reasonable inference to be drawn therefrom in its favor. 2 Strong, N.C. Index 2d, Criminal Law, § 104. So considered, the evidence in the present case is ample to warrant the denial of the motion concerning the charge of first degree murder and to warrant the submission of that question to the jury.

The testimony of Artie McKesson was that she, an eyewitness, only six feet distant from the defendant and Core at the time of the shot, saw the defendant point his pistol at Core and fire when Core was standing before him with his hands outstretched and empty, the palms turned upward. A reasonable inference could be drawn from the defendant's own testimony that he, having been knocked down by Core, went to his home, armed himself, returned to the campus in search of Core with intent to renew the quarrel and obtain revenge and did renew the quarrel for that purpose some two hours or more after the first altercation had ended. Upon motion for judgment of nonsuit made at the conclusion of all the evidence, so much of the defendant's evidence as is favorable to the State is taken into consideration. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679; State v. Prince, supra; State v. Mabry, 269 N.C. 293, 152 S.E.2d 112; State v. Bryant, 235 N.C. 420, 70 S.E.2d 186.

In his Assignment of Error No. 3, the defendant asserts that the trial court erred in its charge to the jury by failing to include in its review of the evidence some of the defendant's evidence relating to his contention that he killed Core in self defense. The defendant does not except to the court's instructions as to the rules of law applicable to self defense.

In summarizing the evidence, the judge told the jury that he would not attempt to recapitulate or summarize all of it, it being the duty of the jury to remember and consider all of the evidence introduced during the trial. The court's summary of the evidence, both that of the State and that of the defendant, was fair and impartial. We find no material omission and no inaccuracy. The defendant did not direct the attention of the trial judge to any omission or inaccuracy or request any addition or correction. As Justice Moore said in State v. Sanders, 276 N.C. 598, 174 S.E.2d 487: "The recapitulation of all the evidence is not required under G.S. § 1-180, and nothing more is required than a clear instruction which applies the law to the evidence and gives the position taken by the parties as to the essential features of the case. State v. Thompson, 257 N.C. 452, 126 S.E.2d 58. If defendant desired fuller instructions as to the evidence or contentions, he should have so requested. His failure to do so now precludes him from assigning this as error." See also, State v. Guffey, 265 N.C. 331, 144 S.E.2d 14; Strong, N.C. Index 2d, Criminal Law, § 113. There is no merit in this assignment of error.

The defendant's Assignment of Error No. 4 relates to the trial court's response to a request by the jury for further instruction as to the "essential differences" between first degree murder, second degree murder and manslaughter. In the original charge, the court instructed the jury correctly as to the elements of each of these offenses. When the jury returned with the request for further instructions, the court again defined murder in the first degree, murder in the second degree and manslaughter. The defendant does not contend that there was any error in these instructions as to the applicable rules of law. Concerning manslaughter the court, in response to this request for further instructions, said: "Manslaughter, and I am referring, of course, to such cases as the one that we are now concerned with, is the unlawful killing of a human being without malice, express or implied, and without premeditation or deliberation." (Emphasis added.) The defendant contends that the portion of this instruction which we have italicized constituted an expression of opinion by the judge that the defendant should be found guilty of manslaughter. There is no merit in this contention.

It is, of course, error for the judge, in his charge to the jury or otherwise, to express to or in the presence of the jury any opinion as to the verdict which the jury should render. G.S. § 1-180. The above quoted instruction did not violate this well settled rule. We think it clear that the court was simply eliminating from his definition involuntary manslaughter to which he had referred in the original charge, there telling the jury, correctly, that there is no evidence in this case to support a verdict of involuntary manslaughter. We do not deem it reasonably conceivable that the jury could have construed this final definition of manslaughter as an expression of opinion by the court concerning the verdict which the jury should return.

No error.