State v. Keziah

Sharp, J.

The judge charged the jury that they would return a verdict of guilty as charged if they were satisfied beyond a reasonable doubt that, on September 20, 1966, Mrs. Patterson was in possession of the premises at 734 West Trade Street, Charlotte, North Carolina; that she had previously forbidden defendant from coming onto those premises; and that on that date he wilfully entered upon them. Defendant contends that this instruction presented to the jury only the State’s theory of the case and ignored the hypothesis upon which he based his defense. He assigns as error the failure of the court to charge that if the jury should find that Mrs. Patterson had forbidden defendant to come upon her premises only when he was drinking and that he had had nothing to drink on the occasion in question, their verdict should be not guilty.

This assignment of error must be sustained. G.S. 1-180 requires the trial judge to apply the law to the various factual situations presented by the conflicting evidence. Defendant’s testimony, if the jury found it to be true, would entitle him to a verdict of not guilty. He was, therefore, entitled to have the legal effect of his evidence explained to them. Saunders v. Warren, 267 N.C. 735, 149 S.E. 2d 19; Faison v. Trucking Co., 266 N.C. 383, 146 S.E. 2d 450; Williamson v. Williamson, 245 N.C. 228, 95 S.E. 2d 574; 4 Strong, N. C. Index, Trial § 33 (1961).

New trial.