State v. Butcher

Decision Date15 December 1971
Docket NumberNo. 716SC508,716SC508
Citation185 S.E.2d 11,13 N.C.App. 97
CourtNorth Carolina Court of Appeals
PartiesSTATE of North Carolina v. Lawrence C. BUTCHER.

Atty. Gen., Robert Morgan and Associate Atty., Ann Reed, Raleigh, for the State.

Bruce C. Johnson, Conway, for defendant appellant.

MALLARD, Chief Judge.

Defendant assigns as error the failure of the judge to allow his motion for judgment as of nonsuit. From the evidence, this occurrence seems to have been a Sunday night 'shoot-out' on 23 June 1968 at a 'juke box joint.' Because a new trial is awarded, we refrain from a discussion of the evidence. We hold that on this record the evidence was sufficient to take the case to the jury, and the trial judge did not commit error in overruling the defendant's motion for judgment as of nonsuit.

Defendant also assigns as error the following portions of the judge's instructions to the jury.

'The Defendant Butcher, Lawrence C. Butcher, testified about this affair and Told Sheriff Ingram about it. He testified here at the courthouse and said that he had a pistol and that he had thrown it away, and he also said he could not have shot Wesley, because he was on the opposite side of the car. That he did shoot into the car with a .22 pistol. That Moody told him he shot back at the moving car and that he saw Jack Clanton shoot at him. (Emphasis added.)

Now, the Defendant Butcher took the stand on his own behalf. He said that he went to Squire's place on this night with Moody, and that they had come out and they heard a shot and saw his brother-in-law running. That he heard a second shot and that Moody was hit in the face and he left. That Jack Clanton shot at Moody first and then he shot at Butcher as they were walking around when they were shot, and that he saw Jack Clanton with the pistol standing by the car, and he saw the flash of the gun as it was discharged.' (Emphasis added.)

The defendant's brother, Randolph Butcher, testified; but the defendant, Lawrence Butcher, did not take the stand and testify.

The record reveals that the defendant did not call this misstatement of the evidence to the attention of the judge before the jury retired to consider the case. Neither did the defendant request the judge to instruct the jury how they should consider the fact that the defendant did not testify.

The general rule is that where the judge, in charging the jury, misstates the evidence or the source of the evidence, such inaccuracy must be called to the attention of the judge before the jury retires to afford him an opportunity to correct it; otherwise, the objections thereto are deemed waived and will not be considered on appeal. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970); State v. Ritter, 239 N.C. 89, 79 S.E.2d 164 (1953); State v. Lambe, 232 N.C. 570, 61 S.E.2d 608 (1950); State v. Walker, 6 N.C.App. 740, 171 S.E.2d 91 (1969); State v. Bass, 5 N.C.App. 429, 168 S.E.2d 424 (1969). But this rule is not applicable where the misstatement is of a material fact not shown in evidence, in which event it is not required that the matter have been called to the judge's attention before the jury retires. State v. Frizzelle, 254 N.C. 457, 119 S.E.2d 176 (1961); Baxley v. Cavenaugh, 243 N.C. 677, 92 S.E.2d 68 (1956); State v. McCoy, 236 N.C. 121, 71 S.E.2d 921 (1952); Piedmont Supply Co. v. Rozzell, 235 N.C. 631, 70 S.E.2d 677 (1952); State v. Blackshear, 10 N.C.App. 237, 178 S.E.2d 105 (1970); State v. Bradshaw, 7 N.C.App. 97, 171 S.E.2d 204 (1969); State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969); State v. Boone, 5 N.C.App. 194, 167 S.E.2d 780 (1969); State v. Bertha, 4 N.C.App. 422, 167 S.E.2d 33 (1969); 1 Strong, N.C. Index 2d, Appeal & Error, § 31.

Absent a special request, the judge is not required to instruct the jury that a defendant's failure to testify does not create any presumption against him. State v. Rainey, 236 N.C. 738, 74 S.E.2d 39 (1953); State v. Kelly, 216 N.C. 627, 6 S.E.2d 533 (1940); State v. Jordan, 216 N.C. 356, 5 S.E.2d 156 (1939); 3 Strong, N.C. Index 2d, Criminal Law, § 116. However, when the trial judge elects, or is requested to charge the jury concerning the defendant's testimony, or lack of it, it becomes his duty to charge correctly on this phase of the case.

In 3 Strong, N.C. Index 2d, Criminal Law, § 116, the rule is stated:

'The failure of defendant to testify in his own behalf should not be made the subject of comment by the court Except to inform the jury that a defendant may or may not testify in his own behalf as he may see fit, and that his failure to testify does not create any presumption against him. * * *' (Emphasis added.)

In the case before us, the defendant did not testify, yet the trial judge twice instructed the jury that the defendant did testify and informed the jury of what the defendant purportedly had said. Much of what the jury was told by the judge that the defendant testified to was, in substance, what the State's witness, Deputy Sheriff E. W. Ingram, testified that the defendant had told him. The statement that Mr. Ingram attributed to the defendant would be direct evidence that the defendant was firing a pistol At the car in which the victim was shot. The judge, in the challenged instructions, informed the jury that the defendant 'told Sheriff Ingram about it.' This was stating as a fact that the defendant had told the deputy sheriff about the matter, and it amounted to an expression of an opinion by the judge on a crucial fact in the case, in violation of G.S. § 1--180 which prohibits the judge from expressing an opinion whether a fact is fully proven. It was for the jury, not the judge, to determine whether the defendant had in fact told the deputy sheriff about the matter; and if so, what it was that he had told him. In 5 Am.Jur.2d, Appeal and Error, § 815, it is said:

'And it is reversible error for the court to assume that any fact necessary to establish the guilt of the defendant has been proved, and thus, by its instructions, to relieve the jury of its obligation to consider that issue.'

The trial judge, in the challenged instructions, has attributed much of what the...

To continue reading

Request your trial
3 cases
  • State v. Lang, 7928SC681
    • United States
    • Court of Appeal of North Carolina (US)
    • April 15, 1980
    ...accepted and applied rule has no application here. See State v. Frizzelle, 254 N.C. 457, 119 S.E.2d 176 (1961); State v. Butcher, 13 N.C.App. 97, 185 S.E.2d 11 (1971). It will serve no useful purpose for us to discuss in detail the entire charge and each portion of the charge which defendan......
  • State v. Joyner, 813SC177
    • United States
    • Court of Appeal of North Carolina (US)
    • October 6, 1981
    ...not shown in evidence, it is not required that the error be called to the judge's attention before the jury retires. State v. Butcher, 13 N.C.App. 97, 185 S.E.2d 11 (1971). In the present case, defendant did not object to the misstatement before the jury retired. The misstatement is not, as......
  • State v. Jones, 7410SC505
    • United States
    • Court of Appeal of North Carolina (US)
    • June 5, 1974
    ...should have advised the court of its misconception regarding the evidence before the case was sent to the jury. State v. Butcher, 13 N.C.App. 97, 185 S.E.2d 11, and cases cited therein. Moreover, even if it is assumed that better practice requires the court to say 'allegedly admitted' rathe......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT