STATE of North Carolina
v.
Ronald Lee MULL.
No. 7429SC876.
Court of Appeals of North Carolina.
February 5, 1975.*516 Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. William W. Melvin and William B. Ray, Raleigh, for the State.
Dameron & Burgin by E. P. Dameron, Marion, for defendant appellant.
MORRIS, Judge.
Because defendant has failed to argue in his brief his first and fifth assignments of error, they are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.
*517 Defendant's second assignment of error relates to the denial of his motions to nonsuit at the close of the State's evidence and at the close of all the evidence. "By introducing testimony at the trial, defendant waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State's evidence. His later exception to the denial of his motion for nonsuit made at the close of all the evidence, however, draws into question the sufficiency of all the evidence to go to the jury. (Citations omitted.)" State v. McWilliams, 277 N.C. 680, 687, 178 S.E.2d 476, 480 (1971).
It is well settled in this State that upon motion to nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom, and that nonsuit should be denied when there is sufficient evidence, direct, circumstantial or both, from which the jury could find that the offense charged has been committed and that defendant committed it. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). Here, evidence tendered by the State, and set forth above, did more than raise suspicions as to defendant's involvement and possible guilt. In our opinion, there was substantial evidence of each of the elements of the offense charged and defendant's guilt or innocence was a question for the jury. Defendant's motion to nonsuit was properly denied.
In his third and fourth assignments of error, defendant contends that the trial court erred in summarizing the evidence in its charge to the jury. In one instance the trial court stated that the prison guard had testified that he saw defendant strike Keeter on the chest, when in fact the guard stated that defendant made "a striking lick towards Keeter's body." At another point in the charge the trial court instructed the jury that the State had offered evidence tending to show that defendant and Keeter "had had some difficulty before down in the Shelby Prison Unit." Nowhere in the record is there evidence to support this statement. While the district attorney asked the defendant and several other witnesses if there had been some trouble or difficulty between the defendant and Keeter at the Shelby Prison Unit, in each instance knowledge of any such trouble was denied.
As we stated in State v. Blackmon, 6 N.C.App. 66, 73, 169 S.E.2d 472, 477 (1969):
"It is well settled that a slight inaccuracy in stating the evidence will not be held reversible error when the matter is not called to the court's attention in apt time to afford an opportunity for correction; on the other hand, an instruction containing a statement of a material fact not shown in evidence must be held prejudicial, even though not called to the court's attention at the time. 3 Strong, N.C. Index 2d, Criminal Law, § 113, p. 15, and cases cited."
In our opinion the statement by the trial judge that defendant struck Keeter "on Keeter's chest" rather than that defendant made "a striking lick towards Keeter's body" is clearly a slight inaccuracy which cannot be held reversible error, especially in light of the fact that defendant failed to call the matter to the court's attention in apt time to permit correction. We also fail to see how defendant was prejudiced by the trial court's statement that defendant and Keeter "had had some difficulty before down in the Shelby Prison Unit." Conceding it was error for the trial court to so charge, we conclude such error was harmless on these facts. Here, the trial judge made it abundantly clear that he was summarizing only a part of the evidence, that it was the duty of the jury to remember it all, that if their recollection of the evidence differed from his they should take their own recollection concerning the evidence because they must find the facts and decide the truth of the matter. Moreover, in summarizing the contentions of the parties the trial court stressed equally or *518 greater the defendant's contentions concerning this aspect of the evidence. The court stated that the defendant had produced evidence tending to show that he had never had any trouble with Keeter, that he did not have any trouble with Keeter down in the Shelby Prison Unit and that he had no reason to attack Keeter. This assignment of error is overruled.
In his sixth and final assignment of error defendant maintains that the trial court violated G.S. § 1-180 by failing to instruct the jury on manslaughter as a lesser included offense of second degree murder. It is defendant's contention that a charge on manslaughter was necessary in this case since the presumption of malice which arises from proof of an intentional killing with a deadly weapon was rebutted by his testimony that he and Keeter always "got along fine" and that he had no reason to attack Keeter. We disagree.
"'The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed.' State v. Hicks, 241 N.C. 156, 84 S.E.2d 545." State v. Morrison, 19 N.C.App. 717, 720, 200 S.E.2d 341, 344 (1973).
Here there was no evidence of just cause or reasonable provocation for the homicide, nor was there evidence of self-defense, unavoidable accident or misadventure. Defendant's self-serving declarations alone were not sufficient to rebut the presumption of malice arising in this case.
Defendant received a fair trial free from prejudicial error.
No error.
PARKER and HEDRICK, JJ., concur.