State v. Carter , 24 N.C. App. 292 ( 1974 )

BROCK, Chief Judge.

In his thirteenth assignment of error, defendant contends that the trial judge erred when he.charged the jury:

“Your verdict must be unanimous. All twelve must agree before it is a jury'verdict.

“. . . When all twelve are in agreement as; to what your verdict is, you will indicate it by knocking on the door. ...”

Defendant argues that this portion of the charge “left no. room open for the jury to disagree.”

: j We believe that the jury could' not have interpreted that portion of the charge to mean that there could be no. disagreement. The State argues that knowledge of disagreement: among jurors is so pervasive in our society that no juror could misunderstand such statements. We agree. This assignment of error is-overruled.

' In his fourteenth assignment of error, defendant)'asserts that-¡the. trial-court erred when it, failed to give defendant an alibi instruction notwithstanding his failure .to request.it. .The evidence offered by defendant tended to show that he was elsewhere when Mrs. Johnson was slain. Although this evidence was reviewed fully by the court, no .specific instruction was given the jury as to the specific principles applicable to the defense of alibi.

...It w.as formerly the rule in North Carolina that1 failure to give an qlibi instruction was prejudicial error, even defendant. had5 not specifically requested the instruction. State v. Vance, 277 N.C. 345, 177 S.E. 2d 389; State v. Leach, 263 N.C. 242, 139 S.E. 2d 257; State v. Gammons, 258 N..C. 522, 128 S.E. 2d 860; State v. Spencer, 256 N.C. 487, 124 S.E. 2d 175; State v. Melton, 187 N.C. 481, 122 S.E. 17. However, in State v. Hunt, 283 N.C. 617, 197 S.E. 2d 513, the Supreme Court overruled those decisions in respect of that .rule and “reached; .the conclusion that reason and authority-.support a different rule, namely, that the court is not required, to give such an instruction unless it is requested by the defendant.” 283 N.C. at 618.

Because defendant made no request for an alibi instruction, he' may not now complaiii. This assignment of error -is overruled.

We have carefully reviewed defendant’s remaining fourteen assignments of error and find them to be without merit.

It is our opinion that defendant had a fair trial free from prejudicial error.

No error.

Judges Campbell and Hedrick concur.