State v. Church

258 S.E.2d 812 (1979)

43 N.C. App. 365

STATE of North Carolina v. Hubert CHURCH.

No. 7924SC469.

Court of Appeals of North Carolina.

October 16, 1979.

*813 Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Norma S. Harrell and Douglas A. Johnston, Raleigh, for the State.

Huff & Huff by Joseph B. Huff and Stephen E. Huff, Marshall, for defendant-appellant.

ARNOLD, Judge.

Defendant contends that the court erred in denying his motion to dismiss, made at the close of the State's evidence and renewed at the close of defendant's evidence as required by G.S. 15-173. The test on such a motion is whether sufficient evidence has been presented to support a finding by the jury that defendant committed an offense with which he is charged. See State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976). In ruling on the motion the court must consider the evidence in the light most favorable to the State, and may consider the defendant's evidence only if it is favorable to the State or if it serves to explain the State's evidence without conflicting with it. State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971).

To withstand defendant's motion, the State must have presented evidence of every essential element of the crime. State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971). Involuntary manslaughter is an unintentional killing without malice, resulting from "(1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission." State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976). Considering all *814 the evidence, in which there is essentially no conflict, we cannot say as a matter of law that defendant did not act in a culpably negligent manner. This is a question for the jury. There was no error in the denial of defendant's motion.

As the State points out, defendant's exceptions to the charge to the jury fail to comply with the requirements of Appellate Rule 10(b)(2). In the interest of justice, however, we have considered defendant's assignment of error number three, cf. State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Robinson, 272 N.C. 271, 158 S.E.2d 23 (1967), and we find that it has merit.

When a person who is without fault in bringing on the difficulty is attacked upon his own premises, he has no duty to retreat before he can act in self-defense. State v. Browning, 28 N.C.App. 376, 221 S.E.2d 375 (1976). And where there is evidence to this effect, it is reversible error for the court to fail to instruct the jury on the defendant's right to stand his ground. Id. Such is the case here. We need not discuss defendant's remaining assignments of error, as they are unlikely to occur at a

New Trial.

WEBB and WELLS, JJ., concur.