State v. Smith , 28 N.C. App. 314 ( 1976 )

BROCK, Chief Judge.

Defendant argues that the trial judge instructed the jury that defendant had the burden of proving that he acted in self-defense. Defendant cites Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 2d 508 (1975). In our view the principles of Mullaney have no application to the instructions in the case now before us. It has long been the rule in North Carolina that a defendant, in cases not involving homicide, does not have the burden of satisfying the jury that he acted in self-defense.

The trial judge clearly and unequivocally instructed the jury at least seven times during the charge that the burden of proof was upon the State to satisfy the jury beyond a reasonable doubt of the guilt of defendant. At no point was a burden of proving anything placed upon the defendant.

After explaining defendant’s right to act in self-defense, the trial judge instructed:

“Now, if you find that the defendant properly acted in self-defense and are satisfied to (sic) this, Members of the Jury, then he would not be guilty of any offense, he would not be guilty of the first issue or any lesser included offense, Ladies and Gentlemen.”

Later in the charge the trial judge instructed:

“If you fail to so find or if you have a reasonable doubt as to one or more of the essential elements of this lesser offense, you should find the defendant not guilty and your verdict on the second issue would be not guilty, or if you believe that he acted in self-defense, as the Court has instructed you thereon, Members of the Jury, then you would find him not guilty of any offense, Ladies and Gentlemen, if you find that he properly acted in self-defense on the occasion in question.”

Defendant’s argument is that the foregoing instructions placed upon defendant the burden of proving that he acted in self-defense. We do not agree. The burden of proof of each element of the offense having been squarely placed upon the State, we do not envision that the foregoing instructions could have conveyed to the jury an impression that defendant was required to prove anything.

Defendant’s remaining assignment of error relates to the admission of evidence. We have carefully reviewed this in the light of all the evidence and conclude that no prejudicial error has been shown.

No error.

Judges Britt and Morris concur.