State v. Colson, 11 N.C. App. 436 (1971)

May 26, 1971 · North Carolina Court of Appeals · No. 7115SC298

11 N.C. App. 436

STATE OF NORTH CAROLINA v. FLORA ANN COLSON

No. 7115SC298

(Filed 26 May 1971)

Criminal Law § 113— instructions — expression of opinion — application of law to evidence

In this prosecution for assault with a deadly weapon, the trial court did not express an opinion in recapitulating the evidence and did not fail to apply the law of self-defense to the evidence. G.S. 1-180.

Appeal by defendant from Canaday, Judge, at the 7 December 1970 Criminal Session of Orange Superior Court.

By indictment proper in form, defendant was charged with unlawfully, wilfully, and feloniously assaulting Darlene Thompson with a deadly weapon, to wit: a pistol, by shooting her with same with the felonious intent to kill and murder the said Darlene Thompson, inflicting serious injuries not resulting in death. The jury returned a verdict of guilty as charged and from judgment imposing prison term of not less than three nor more than five years, defendant appealed.

Attorney General Robert Morgan by Assistant Attorney General Robert G. Webb for the State.

Manning, Allen & Hudson by Marcus Hudson for defendant appellant.

BRITT, Judge.

The two asignments of error brought forward and argued in defendant’s brief relate to the trial court’s instructions to the jury.

In her first assignment of error, defendant contends that in recapitulating certain evidence, the court expressed an opinion which was prejudicial to the defendant, in violation of G.S. 1-180. We disagree with this contention. In the first place, we do not think the portion of the charge complained of constituted an expression of opinion. Furthermore, just before the trial judge submitted the case to the jury, he said: “The Court has no opinion, ladies and gentlemen, as to what your verdict should be in this case, and the Court does not intimate an opinion.” We perceive no prejudice. The assignment of error is overruled.

In her second assignment of error, defendant contends that the court in its instructions relating to the law of self-defense failed to apply the law to the facts, in violation of G.S. 1-180. We disagree with this contention and conclude that the trial judge adequately applied the law of self-defense to the evidence introduced in the trial. The assignment of error is overruled.

After a careful review of the entire record, we conclude that the defendant received a fair trial, free from prejudicial error, and that the sentence imposed was well within the limits prescribed by statute.

No error.

Judges Campbell and Graham concur.