State v. Martin

PARKER, Judge.

Appellant first assigns error to the trial court’s denial of his motion to set aside the verdict. He contends that the verdict was against the greater weight of the evidence and that the evidence established that he acted in self-defense “as a matter of law.” A motion to set aside the verdict as being against the weight of the evidence is addressed to the discretion of the trial court and its refusal to grant the motion is not reviewable on appeal. State v. Bridgers, 267 N.C. 121, 147 S.E. 2d 555; State v. Caper, 215 N.C. 670, 2 S.E. 2d 864; 3 Strong, N. C. Index 2d, Criminal Law, § 132, p. 55. The record reveals that this is simply a case in which the jury, on conflicting evidence and after receiving proper instructions from the trial court, found the facts to be contrary to defendant’s contentions.

Appellant next assigns as error that the trial court failed to instruct the jury as to how the defendant, if he was at fault initially, “could regain the right of self-protection.” This assignment of error is without merit. It is true that an accused who quits the combat may invoke the right of self-defense upon renewal of the affray even though he may have been at fault in bringing about the original difficulty, State v. Miller, 221 N.C. 356, 20 S.E. 2d 274, but no such question arises on the evidence here. A careful review of all of the evidence reveals that the difficulty started as a cuss-fight between Young and defendant’s brother on the front porch of defendant’s mother’s home; defendant came to the front door and, according to Young’s testimony, stated, “Let me go get a knife”; defendant turned around and went back through the house, picking up the butcher knife from the kitchen table and taking it with him into the backyard, where the stabbing occurred. There was no evidence *134to support defendant’s contention that there were two separate incidents involving the defendant, one on the front porch and one in the backyard. Even if so considered, the fact that defendant armed himself with a butcher knife after leaving the front porch hardly supports a conclusion that he then intended to withdraw from the combat. This assignment of error is overruled.

We have carefully examined appellant’s remaining assignment of error, directed to the trial court’s action in sustaining an objection to a question asked by defendant’s counsel on cross-examination, and find no prejudicial error.

No error.

Judges Campbell and Morris concur.