State v. Pollard , 29 N.C. App. 557 ( 1976 )

ARNOLD, Judge.

Defendant contends that the trial court erred by failing to include “not guilty by reason of self-defense” in its last and concluding charge to the jury. This contention is unfounded since the trial court adequately instructed in its final mandate that if the jury were satisfied by the evidence that defendant acted in self-defense the defendant’s actions were excused, and he would not be guilty of any offense.

The trial court instructed the jury that they could consider the fact that Terry Norton, the victim, had pled guilty to voluntary manslaughter, but they were to consider this only for the purpose of assessing the credibility of the witness. Defendant contends it was error to limit the jury’s consideration of the victim’s prior conviction for manslaughter. He argues that the prior manslaughter conviction was relevant to the question of the reasonableness of defendant’s apprehension that Norton would cause him death or bodily harm.

“[W]hen the point in issue is the ‘reasonableness of the defendant’s apprehension or belief’ the relevant circumstance is not the victim’s actual character but the defendant’s knowledge of facts which would reasonably create apprehension . ” Stansbury’s N. C. Evidence, Brandis Revision, Character of victim in cases of homicide or assault, § 106, p. 332. There was no evidence, either circumstantial or direct, that shows that the defendant knew of the incident involving Norton’s prior manslaughter conviction. The trial court did not improperly limit the jury’s consideration of the victim’s prior conviction for manslaughter.

There is also no basis for defendant’s assertion that the trial judge improperly charged the jury on self-defense. The jury was instructed that defendant’s actions would be excused if the circumstances were such as would create in the mind of a “person of ordinary firmness” a reasonable belief that such actions were necessary to protect his life. Defendant argues that the use of the phrase “person of ordinary firmness” rather than the “defendant” imposed an objective standard rather than a subjective standard to determine his guilt.

The court further charged the jury that “[i]t is for you, the jury, to determine the reasonableness of the defendant’s belief that it was necessary to protect himself by shooting Terry Norton ... I say, it is for you, the jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to him at that time.” The instructions to the jury on the law of self-defense were proper. State v. Jackson, 284 N.C. 383, 200 S.E. 2d 596 (1973) ; State v. Kirby, 273 N.C. 306, 160 S.E. 2d 24 (1968) ; State v. Ward, 26 N.C. App. 159, 215 S.E. 2d 394 (1975).

We have reviewed defendant’s remaining assignments of error to the judge’s charge, and to the consolidation of the charges for trial, and we find them to be without merit.

No error.

Judges Britt and Vaughn concur.