State v. Green, 743

• Decision Date: 14 December 1966
• Docket Number: No. 743,743
• Citation: 151 S.E.2d 606,268 N.C. 690
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charles GREEN.

Page 606

151 S.E.2d 606

268 N.C. 690

STATE of North Carolina v. Charles GREEN.

No. 743.

Supreme Court of North Carolina.

Dec. 14, 1966.

T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Jerry L. Jarvis, Durham, for defendant.

SHARP, Justice.

Defendant assigns as error the failure of the judge to charge on alibi substantially as set out in State v. Spencer, 256 N.C. 487, 489, 124 S.E.2d 175, 177:

"An accused, who relies on an alibi, does not have the burden of proving it. It is incumbent upon the State to satisfy the jury beyond a reasonable doubt on the whole evidence that such accused is guilty. If the evidence of alibi, in connection with all the other testimony in the case, leaves the jury with a reasonable doubt of the guilt of the accused, the State fails to carry the burden of proof imposed upon it by law, and the accused is entitled to an acquittal."

The evidence in this case did not require the court to give the above charge. 'To constitute an alibi, it must appear that the accused was at some other Specified place at the time of the commission of the crime * * *.' 22 C.J.S. Criminal Law § 40 (1961). (Italics ours.) Furthermore, a defendant's mere denial that he was at the place when the crime was committed is insufficient to justify the giving of an instruction on alibi. 53 Am.Jur., Trial § 653 (1945). In such case, the general charge of the court that the jury should acquit defendant unless they are satisfied from the evidence beyond a reasonable doubt that he committed the assault is sufficient. Byas v. State of Texas, 41 Tex.Cr. 51, 51 S.W. 923, 96 Am.St.Rep. 762.

Defendant's testimony as to his whereabouts on the day Alwilda was cut was merely incidental to his denial that he cut her and to his assertion that both she and the investigating officer had testified falsely. His statements with reference to his movements on the Sunday in question were not sufficiently definite to establish his presence at any specified place elsewhere at the time the crime was committed. The State's evidence did not fix the exact time Alwilda was cut. It was--according to her--during the daylight hours of Sunday, May 9, 1965. Swannie Hester Thought that Alwilda left the house before noon, that she was gone two hours, and that she then came back with her face cut. In view of this uncertainty, even if defendant's testimony as to his whereabouts be accepted as true, the jury might still have found that he was in Hillside Park when Alwilda was cut. If the evidence does not reasonably exclude the possibility of the presence of defendant at the scene of the alleged crime it is not error to fail to instruct the jury on the law of alibi. Ethridge v. State, 163 Ga. 186, 136 S.E. 72; State v. Davenport, 208 Iowa 831, 224 N.W. 557.

In People v. Lucas, 16 Cal.2d 178, 105 P.2d 102, 130 A.L.R. 1485, defendant claimed that on the day in question he was visiting at San Quentin Prison and therefore could not have been in Modesto, where the crime was committed. In holding that the trial court did not err in refusing to instruct the jury as to the law of alibi, the California court said:

'(T)here is nothing in the record to show that appellant could not have been in San Quentin and still have reached Modesto by 8 o'clock in the evening of the day in question. It is upon that testimony appellant has based his defense of an alibi. * * * No witness, other than the defendant, testified as to his whereabouts at the time of the alleged crime. It very probably was true that defendant was at San Quentin on the day in question, but still he could have been in Modesto at the time charged by the prosecution.' Id. at 181, 105 P.2d at 103.

In Commonwealth v. McQueen, 178 Pa.Super. 38, 112 A.2d 820, defendant testified that he could not say definitely where he was on the night in question but that he was probably at the movies or at home in bed. In holding that, with this evidence, 'defendant was not attempting to establish an affirmative defense of alibi,' the court said:

'If a person says 'I was not at the scene of the crime but I do not remember where I was,' he is not attempting to prove an alibi, even though he naturally had to be elsewhere if he was not at the scene of the crime. What is known in law as an alibi is an attempt by the defendant to prove that he could Not have...