State v. Hargrove, 27 N.C. App. 36 (1975)

Sept. 3, 1975 · North Carolina Court of Appeals · No. 759SC331

27 N.C. App. 36

STATE OF NORTH CAROLINA v. ROBERT HARGROVE

No. 759SC331

(Filed 3 September 1975)

1. Assault and Battery § 14— felonious assault — sufficiency of evidence

The State’s evidence was sufficient for the jury in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death.

2. Criminal Law § 163— objections to review of evidence and contentions

Objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial court an opportunity for correction or they will be deemed to have been waived.

Appeal by defendant from Hobgood, Judge. Judgment entered 7 January 1975 in Superior Court, Warren County. Heard in the Court of Appeals 26 August 1975.

By indictment proper in form, defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death. A shotgun was the weapon allegedly used and Thomas Walter Turner was the alleged victim. Defendant pled not guilty, a jury found him guilty as charged, and from judgment imposing prison sentence of 10 years, to be credited with 115 days defendant was confined awaiting trial, he appealed.

Attorney General Edmisten, by Associate Attorney Isaac T. Avery III, for the State.

Clayton and Ballance, by Theaoseus T. Clayton, for defendant appellant.

BRITT, Judge.

[1] By his first assignment of error, defendant contends the trial court erred in denying his motions for nonsuit. No useful purpose would be served in relating the testimony here. Suffice it to say, the evidence was more than sufficient to survive the motions, therefore, the assignment is overruled.

[2] By his second assignment of error, defendant contends the trial court erred in its charge to the jury by including in its summation of testimony evidence to which the court had sustained defendant’s objection. We find no merit in this assignment. It is a general rule in this jurisdiction that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial court an opportunity for correction, otherwise, the objections are deemed to have been waived and will not be considered on appeal. State v. Gaines, 283 N.C. 33, 194 S.E. 2d 839 (1973) ; State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970). Furthermore, we perceive no prejudice to defendant in the inclusion of that testimony. The assignment of error is overruled.

No error.

Judges Hedrick and Martin concur.