State v. McKinnon

177 S.E.2d 299, 9 N.C. App. 724, 1970 N.C. App. LEXIS 1455

• Court: Court of Appeals of North Carolina
• Decided: November 18, 1970
• Docket: No. 7025SC567
• Status: Published

Opinion

GRAHAM, Judge.

Defendant assigns as error the failure of the court to declare and explain the law arising on the evidence given in the case as required by G.S. 1-180. This assignment of error is well taken. The court instructed the jury as to the necessary elements of the offense charged and each lesser included offense without any reference to the evidence offered in this case. Near the conclusion of the charge the court stated:

“Now, members of the jury, the court will briefly recapitulate the evidence in this case which has been offered so that the law which I have given you may be applied to the evidence.”

Then followed a recital of what some of the evidence tended to show, but no instruction was given as to how the law applied to it. Thus, the jury was left unaided to apply the abstract principles of law to the facts. This was error requiring a new trial. Roberts v. Freight Carriers, 273 N.C. 600, 160 S.E. 2d 712; State v. Coggin, 263 N.C. 457, 139 S.E. 2d 701; State v. Herbin, 232 N.C. 318, 59 S.E. 2d 635.

We do not rule on other assignments of error brought forward by defendant since the questions raised may not recur on another hearing.

New trial.

Judges Brock and Morris concur.