STATE of North Carolina
v.
Horace Ray McCLAIN.
No. 69.
Supreme Court of North Carolina.
December 13, 1972.*114 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas E. Kane, for the State.
Garland B. Daniel, Raleigh, for defendant.
LAKE, Justice.
The defendant makes four assignments of error. The first is that, with reference to the term "reasonable doubt," the court instructed the jury as follows:
"A reasonable doubt is not a vain, imaginary or fanciful doubt but is a sane, rational doubt. It means that the jury must be satisfied of the defendant's guilt to a moral certainty of the truth of the charge.
"If after considering, comparing and weighing all of the evidence the minds of the jurors are left in such condition that they cannot say that they have an abiding faith to a moral certainty in the defendant's guilt, then they have a reasonable doubt; otherwise not."
The defendant's exception is to the words "otherwise not" in the foregoing instruction. There is no merit in this exception. The law does not require any set formula in defining "reasonable doubt," it *115 being sufficient that the trial judge, if he undertakes to define the term, do so in substantial accord with definitions approved by this Court. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133. In State v. Schoolfield, 184 N.C. 721, 114 S.E. 466, this Court, speaking through Justice Stacy, later Chief Justice, defined "reasonable doubt" in precisely the same terms used by the trial judge in this case. As Justice Denny, later Chief Justice, said in State v. Hammonds, supra, "The above or other approved formulae may be found in scores of our decisions."
The defendant's second assignment of error is that the court, in its charge, failed to allude to the contention of the defendant that he was in the automobile of Mrs. Conklin at her request and that they were going after some whiskey. There is nothing whatever in the record to suggest any such contention, except that on cross examination Mrs. Conklin was asked if that were not the case. She stated positively and unequivocally that this was not true. There is no merit in this assignment of error.
The trial judge did not undertake to state any contention either of the State or of the defendant.
In State v. Cook, 273 N.C. 377, 381, 160 S.E.2d 49, 52, this Court, speaking through Justice Huskins, said:
"A trial judge is not required to state the contentions of the litigants. But when he undertakes to give the contentions of one party he must fairly charge as to those of the other. Failure to do so is error. [Citations omitted.] Here, however, the judge did not undertake to give the contentions of either the State or the defendants."
Furthermore, as this Court said in State v. Butler, 269 N.C. 733, 153 S.E.2d 477, if the defendant's contentions were not properly stated, the defendant "should have called the attention of the court to any omissions or errors so that they could have been supplied or corrected." See also: State v. Sanders, 276 N.C. 598, 174 S.E.2d 487; Sherril v. Hood, Comr. of Banks, 208 N.C. 472, 181 S.E. 330; Manufacturing Co. v. Building Co., 177 N.C. 103, 97 S.E. 718. The record does not indicate any suggestion by the defendant to the trial court concerning any statement of or failure to state his contentions in the court's instructions to the jury.
There was no evidence whatever to indicate that Mrs. Conklin signaled to the defendant or was aware of his presence prior to his assault upon her, that she consented to his presence in her vehicle or that she made any suggestion or request to him except to plead that she be allowed to leave the automobile. "The court should never give the jury instructions based upon a state of facts not presented by some reasonable view of the evidence produced on the trial, nor upon a supposed state of facts." State v. Wilson, 104 N.C. 868, 873, 10 S.E. 315, 317. "A judge should never charge the jury upon a state of facts not presented by some reasonable view of the evidence of the case." State v. Hollingsworth, 263 N.C. 158, 162, 139 S.E.2d 235, 237. "No instruction should be given which is not reasonably supported by the evidence, or which is not based on some theory logically deducible from some portion of the evidence." 23A C.J.S., Criminal Law, § 1313.
The defendant's third assignment of error is that the court, in reviewing the evidence in its charge to the jury, failed to state that Officer Gray testified that when the car of the State Capitol Police drove up the defendant got out of the automobile of Mrs. Conklin before she did. There is no merit in this assignment of error. The trial judge correctly instructed the jury: "It is your duty to remember and consider all of the evidence whether called to your attention by counsel or the Court or not, for all of the evidence is important * * *." Any error or omission by the court in its review of the evidence in the charge to the jury must be then called to *116 the attention of the court so that the court may have an opportunity to make the appropriate correction. In State v. Sanders, supra, Justice Moore, speaking for the Court, said: "The recapitulation of all the evidence is not required under G.S. 1-180, and nothing more is required than a clear instruction which applies the law to the evidence and gives the position taken by the parties as to the essential features of the case. State v. Thompson, 257 N.C. 452, 126 S.E.2d 58. If defendant desired fuller instructions as to the evidence or contentions, he should have so requested. His failure to do so now precludes him from assigning this as error." Accord: State v. Greene, 278 N.C. 649, 180 S.E.2d 789; State v. Virgil, 276 N.C. 217, 172 S.E.2d 28; State v. Guffey, 265 N.C. 331, 144 S.E.2d 14; Strong, N.C. Index 2d, Criminal Law, § 113. The failure of the court to call to the attention of the jury the circumstance that Officer Gray testified that the defendant got out of the Conklin vehicle before his victim escaped therefrom and sought the aid of the officers was not a material omission. Quite clearly, the interval involved was but a few seconds at most, the victim was in justified fear of her life and but a few moments earlier had been forcibly pulled back into the automobile by the defendant when she attempted to escape from it.
The defendant's fourth assignment of error is to the denial of his motion to set aside the verdict by reason of the alleged errors in the court's instructions hereinabove discussed and found to be without merit. Consequently, no further discussion of this assignment is required. It has no merit.
The instructions of the trial judge to the jury set forth accurately and completely the elements of the offense of kidnapping and stated correctly the nature and degree of proof required of the State in order to justify a verdict of guilty. The defendant was caught in the course of the perpetration of the crime with which he was charged and has been fairly tried and convicted. The sentence imposed is in accordance with the statute. G.S. § 14-39.
No error.