State v. Messimer

Supreme Court of North Carolina

State v. Messimer

75 S.E.2d 540, 237 N.C. 617, 1953 N.C. LEXIS 686

CourtSupreme Court of North Carolina

DecidedApril 29, 1953

StatusPublished

Cited by1 cases

This text of 75 S.E.2d 540 (State v. Messimer) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Messimer, 75 S.E.2d 540, 237 N.C. 617, 1953 N.C. LEXIS 686 (N.C. 1953).

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Opinion

WiNBORNE, J.

Defendant presents on this appeal various assignments of error, some of which reveal prejudicial error. Of these-it is sufficient to point to Exception 5.

In the course of his charge to the jury the trial judge instructed in substance that if the jury find from the evidence beyond a reasonable doubt that the defendant struck the prosecuting witness with his fist, and committed an assault upon him, by so striking him, as the court has defined an assault to mean, it would become the duty of the jury to return a verdict of guilty. The instruction is a complete paragraph without reference or qualification as to the plea of self-defense relied upon by defendant. It is misleading to the jury, and prejudicial to defendant. It is true, however, that later in the charge the court gave instructions pertaining to the law of self-defense. Yet there is exception to the sufficiency of such instruction. But even if this latter exception be not well founded, the court immediately after adverting to the law' of self-defense repeated, in brief, the instruction to which exception 5 relates.

[619]*619Since there must be a new trial for error pointed out, other assignments of error need not be considered. The matters to which they relate may not recur upon another trial.'

New trial.

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WiNBORNE, J.

Defendant presents on this appeal various assignments of error, some of which reveal prejudicial error. Of these-it is sufficient to point to Exception 5.

In the course of his charge to the jury the trial judge instructed in substance that if the jury find from the evidence beyond a reasonable doubt that the defendant struck the prosecuting witness with his fist, and committed an assault upon him, by so striking him, as the court has defined an assault to mean, it would become the duty of the jury to return a verdict of guilty. The instruction is a complete paragraph without reference or qualification as to the plea of self-defense relied upon by defendant. It is misleading to the jury, and prejudicial to defendant. It is true, however, that later in the charge the court gave instructions pertaining to the law of self-defense. Yet there is exception to the sufficiency of such instruction. But even if this latter exception be not well founded, the court immediately after adverting to the law' of self-defense repeated, in brief, the instruction to which exception 5 relates.

[619]*619Since there must be a new trial for error pointed out, other assignments of error need not be considered. The matters to which they relate may not recur upon another trial.'

New trial.

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Bluebook (online)

75 S.E.2d 540, 237 N.C. 617, 1953 N.C. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-messimer-nc-1953.

Opinion

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