dissenting.
The majority hold that the evidence in this case was insufficient to support a finding by a jury that defendant Scott aided and abetted defendant Jacobs in murdering her husband and that defendant Scott’s motion for nonsuit therefore should have been granted. The majority also hold that the trial judge committed prejudicial error in failing to instruct the jury that defendants’ decision not to testify or offer other evidence “should not be considered by the jury as basis for any inference adverse to [them].” State v. Baxter, 285 N.C. 735, 208 S.E. 2d 696 (1974). Consequently, defendant Scott’s conviction is reversed outright and defendant Jacobs is awarded a new trial. For the reasons which follow, I dissent as to both defendants and vote to uphold their convictions.
The evidence against defendant Scott is accurately stated in the majority opinion. Suffice it to say that, in my opinion, when this evidence is considered in the light most favorable to the State, when any contradictions and discrepancies are resolved in favor of the State, and when the State is given the benefit of all reasonable inferences arising from this evidence, see State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), there is evidence from which a jury could reasonably conclude that *725defendant Jacobs shot her husband to death and that defendant Scott aided and abetted her in that act. See State v. Rankin, 284 N.C. 219, 200 S.E. 2d 182 (1973).
Defendants offered no evidence. After they rested, the trial judge on his own motion instructed the jury, in part, that “[t]he defendant Scott as he has the right to do, has elected not to offer evidence. The defendant Jacobs, as she has a right to do, has elected not to offer any evidence.” The majority, relying on State v. Baxter, swpra, hold that the trial judge, having given this instruction, committed reversible error in failing to further instruct the jury that defendants’ decision not to offer evidence could not be “considered as a circumstance against them.” Although this omission was a technical violation of the rule announced in Baxter, examination of the instruction given in the present case convinces me that this oversight on the part of the trial judge was harmless beyond a reasonable doubt.
In Baxter, the trial judge instructed the jury that “[t]he defendants, [naming them], did not offer any evidence as they have the right to do.” The majority in Baxter concluded that this statement was ambiguous in that it could mean either that defendant “had the right not to offer any evidence and did not do so; or ... he had the right to offer evidence and did not do so.” In' the instant case, however, as the majority concede, “[t]he statement . . . does not suffer from the same ambiguity as the statement in Baxter. Reasonably interpreted it seems clear that the right referred to by the trial judge in both instances was the right not to offer evidence.” For these very reasons, I do not believe that there is a reasonable possibility that the omission complained of might have contributed to the convictions. Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229 (1963). In all events, when considered in the context in which it was used the incomplete statement had no prejudicial effect on the result of the trial and was therefore harmless. See State v. Perry, 231 N.C. 467, 57 S.E. 2d 774 (1950), and my dissent in State v. Baxter, supra, at 739.
For the reasons stated above, I dissent from the majority opinion and vote to reverse the Court of Appeals and uphold the conviction of both defendants.
Justice Copeland concurs in that portion of the dissent relating to the charge of the court.