State v. Spencer, 145

• Decision Date: 07 March 1962
• Docket Number: No. 145,145
• Citation: 124 S.E.2d 175,256 N.C. 487
• Parties: STATE, v. Charles SPENCER and Johnny Spencer.
• Court: North Carolina Supreme Court

Page 175

124 S.E.2d 175

256 N.C. 487

STATE, v. Charles SPENCER and Johnny Spencer.

No. 145

Supreme Court of North Carolina.

March 7, 1962

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Ralph Moody, for the State.

Aaron Goldberg, Wilmington, for appellants.

PARKER, Justice.

The State's evidence tends to show that on the night of 5 February 1961 Robert Beaty, accompanied by four persons, drove his automobile to a place called the 'Big Four' in Pender County, owned and operated by the defendants' father. He was having trouble with his automobile. While he and a mechanic were working on his automobile on the ground outside of the building called 'Big Four', he was shot six times by the defendants, who were on the ground outside the building when they shot him. Charles Spencer was shooting with a rifle, and Johnny Spencer with a pistol.

Defendants offered the testimony of a number of witnesses, including themselves, to the effect that at all times during the shooting of Robert Beaty on the ground outside of the 'Big Four' building, they were inside the building called 'Big Four,' and did not go outside until after all the shots which hit Robert Beaty had been fired, and that neither one of them shot Beaty.

Defendants state in their brief that the sole and chief defense on which they relied was an alibi.

As correctly stated in the State's brief filed by the Attorney General, the trial court recapitulated and stated all the evidence given by defendants and their witnesses showing they were inside the building called the 'Big Four' at the time Beaty was shot outside the building, and gave the defendants' contentions in respect thereto. However, the trial court did not instruct the jury as to the legal effect of their evidence as to an alibi, and defendants assign this as error. This assignment of error is good.

In State v. Melton, 187 N.C. 481, 122 S. E. 17, the Court said: 'The defendant's evidence of an alibi was substantive; it was vital; it was perhaps the chief defense on which he relied; and without tendering a special prayer he was entitled to an instruction as to the legal effect of his evidence if it should be accepted by the jury.'

In State v. Sheffield, 206 N.C. 374, 386, 174 S.E. 105, 111, it is said: 'A defendant is entitled to instruction on alibi without special prayer. State v. Melton, 187 N.C. 481, 122 S.E. 17; C.S. § 564; State v. Steadman, 200 N.C. 768, 769, 158 S.E. 478.'

In State v. Sutton, 230 N.C. 244, 52 S.E. 2d 921, it is written: 'Evidence of an alibi is substantive and the defendant was entitled to an instruction as to the legal effect of his evidence of alibi, if believed and accepted by the jury. State v. Melton, 187 N.C. 481, 122 S.E. 17.'

It is indubitable law in this jurisdiction that, 'the court is required to charge the jury the law upon all substantial features of the case arising upon the evidence without a special request.' State v. Faust, 254 N.C. 101, 118 S.E.2d 769.

State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53, quotes with approval the following from Spencer v. Brown, 214 N.C. 114, 198 S.E. 630: 'The failure of the court to...