State v. Coble , 24 N.C. App. 79 ( 1974 )

MORRIS, Judge.

By defendant’s first two assignments of error, he contends it was error to deny his motions for dismissal and judgment as of nonsuit at the close of the State’s evidence and at the close of all the evidence. We disagree. It is well settled in this State that “ ... in passing upon a motion for nonsuit in a criminal case, the court must consider the evidence in the light most favorable to the State and give the State benefit of every reasonable inference which may be legitimately drawn therefrom. State v. Goines, 273 N.C. 509, 160 S.E. 2d 469. If when so considered there is substantial evidence, whether direct, circumstantial, or both, of all material elements of the offense charged, then the motion for nonsuit must be denied and it is then for the jury to determine whether the evidence establishes guilt beyond a reasonable doubt. State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431.” State v. Locklear, 7 N.C. App. 493, 496, 172 S.E. 2d 924 (1970). After carefully reviewing the record, we hold that the court properly ruled that the evidence in this case was sufficient to withstand defendant’s motions for nonsuit.

Defendant’s third and fourth assignments of error deal with two portions of the trial court’s charge to the jury. The challenged instructions are as follows:

1. “The State says and contends that this defendant was in an unlawful business there, selling liquor. The State says and contends that this defendant struck the first blow that was struck by knocking the liquor out of the hand'of this man that he had poured the liquor for, and brought all this on.”

2. “The State says and contends, that there is no evidence here to the affect (sic) that this defendant was in danger of any great bodily harm at the hands of this man who was coming in. The State says and contends this defendant got his gun and sat facing the door with it on his lap ready to crack down on whoever came in or if this man came in, this particular man.

So the State says and contends, members of the jury, there wasn’t any self defense in this; that he wasn’t justified because a man is doing a lot of cursing, and under these circumstances there ought not be any question in., your mind about it.”

Defendant argues that the trial court misstated the contentions of the State in these portions of the charge, to his prejudice. For example, he notes that the State did not contend that the defendant was in an unlawful business nor did the State contend there was no evidence that defendant was in ■ danger of great bodily harm. Defendant also maintains that there is nothing in the record indicating that the defendant got his gun and sat facing the door “ [r] eady to crack down on whoever came in or if this man came in, this particular man.” . We find defendant’s argument unpersuasive.

Although the record does not contain the closing argument of either the solicitor or defense counsel, we are of the opinion that the State presented competent evidence from which the trial judge could legitimately, fairly and logically infer such contentions. Where an examination of the record discloses evidence from which inferences related by the court as a contention of the State could legitimately, fairly and logically be drawn by the jury, such a statement of a valid contention based on competent evidence is not error. State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970) citing State v. Ford, 266 N.C. 743, 147 S.E. 2d 198 (1966).

Furthermore, there is nothing in the record before us to indicate that the defendant made any objection to,the trial court’s statement of the State’s contentions and, therefore, defendant has waived such objections.

“ [I]t is the general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal. (Citations omitted.)” State v. Virgil, supra, at 230.

We have carefully reviewed the record and conclude that the defendant received a fair trial free from prejudicial error.

No error.

Judges Campbell and Vaughn concur.