STATE
v.
Billy STONE.
No. 656.
Supreme Court of North Carolina.
December 15, 1954.F. D. Hackett, Jr., Robert Weinstein, Lumberton, for defendant-appellant.
Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody for the State.
WINBORNE, Justice.
The record and case on appeal reveal that defendant (1) did not make motion for judgment as of nonsuit, either when the State first rested its case, or at the close of all the evidence, and (2) did not except to any matter of evidence adduced at the trial in Superior Court. Three assignments of error, based upon four exceptions to portions of the charge of the court to the jury, are treated in brief of defendant, and are presented here for consideration by the court.
*924 I. Exceptions 2 and 3: The portions of the charge to which these exceptions, 2 and 3, relate are attacked by defendant for that, as he contends, they cast upon him the burden of producing evidence sufficient to raise a reasonable doubt as to his guilt. It appears by comparison that these portions of the charge are in substantial accord with the text on the subject of "Alibi" appearing in 15 Am.Jur. 14, Sec. 314 of Criminal Law, in 8 R.C.L. 224, Sec. 220 of Criminal Law, and in Wharton's Criminal Evidence 1-2, Tenth Edition, 674-675, Sec. 333 of Chap. VIII, Evidence in Criminal CasesBurden of Proof. Indeed, the charge as so given, read textually, seems to be in harmony with recent decisions of this Court. See State v. Bridgers, 233 N.C. 577, 64 S.E.2d 867; State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 31 A.L.R. 2d 682. What is said on the subject in these cases, if followed, would be an apt guide to a correct charge.
II. Exception 5: This exception is directed to the portion of the charge in which the court instructed the jury as to what verdicts the jury might find. Taken in context with that which precedes, and that which follows the instruction to which the exception relates, it does not seem that the jury could have misunderstood the rule as to burden of proof. Hence the Court holds that, in the instruction so given, prejudicial error is not made to appear.
The instruction, in the light of the evidence offered by the State, is favorable to defendant. See State v. Jackson, 199 N.C. 321, 154 S.E. 402; State v. Hairston, 222 N.C. 455, 23 S.E.2d 885.
III. Exception 6. It is stated in brief of defendant filed on this appeal: "The charge of the court in giving as one of the State's contentions that `the State contends that you should believe what W. G. Britt says about it and that you should believe that for one reason at least when he was brought here by the defendant and was defendant's witness, only the State elected to put him on the stand', is highly prejudicial to the defendant in that there was no evidence upon which to base such a contention, and its harmful effect is obvious."
In this connection the case on appeal fails to show that the attention of the court was called to the misstatement, if it were such. On the other hand, the case on appeal does show that, after stating the contentions of the State and of the defendant, the trial court "asked counsel for statement of any further contentions, and none were requested". The State, therefore, takes the position, and rightly so, that the misstatement, if any, is not now subject to attack or review on appeal, citing State v. Lambe, 232 N.C. 570, 61 S.E.2d 608, 610.
In the Lambe case this Court, in opinion by Ervin, J., declared: "Under the appellate practice which obtains in this jurisdiction, it is not incumbent upon a litigant to except at the trial to errors in the instructions of the judge as to applicable law, or in the instructions of the judge as to the contentions of the parties with respect to such law. It is sufficient if he sets out his exceptions to errors in such instructions for the first time in his case on appeal. * * * The rule is otherwise, however, where the judge misstates the evidence, or the contentions of the parties arising on the evidence. When that occurs, the litigant must call the attention of the judge to the misstatement at the time it is made, and thus afford the judge an opportunity to correct it before the case is given to the jury. Furthermore, he must note an immediate exception to the ruling of the judge in case his request for the correction of the misstatement is refused. If this course is not pursued, the misstatement of the evidence or of the contentions based thereon is not subject to attack on review on appeal", citing cases. See also State v. Lea, 203 N.C. 13, 164 S.E. 737, and State v. Harris, 209 N.C. 579, 183 S.E. 740.
After careful review on assignments of error presented, the case is held to be free from prejudicial error, and the judgment on verdict rendered must stand.
No error.