State v. Goodwin , 59 N.C. App. 662 ( 1982 )

HEDRICK, Judge.

The only assignment of error brought forward and argued in defendant’s brief is as follows:

The Court erred in instructing the jury that the obtaining of insurance proceeds by the burning of a vehicle would be specific intent to injure or prejudice the State Farm Insurance Company, in that the instruction given was erroneous and amounted to a conclusive presumption on an element of the offense, thereby depriving the defendant of his rights to trial by jury and due process of law.

The portion of Appellate Rule 10(b)(2) pertaining to the defendant’s assignment of error is as follows:

Jury Instructions; Findings and Conclusions of Judge. No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.

The record of defendant’s trial discloses the following at the conclusion of the instruction to the jury:

COURT: Gentlemen, before sending the verdict form to the jury and allowing them to begin their deliberations, I will now consider any requests for corrections to the charge to the jury or any additional matters if anyone feels is necessary or appropriate to submit a proper and accurate charge to the jury. Are [there] any specific requests for corrections or additions to the charge?

Mr. Church [prosecuting attorney]: No.

Mr. HARRINGTON [defendant’s counsel]: No, sir.

COURT: Hand them the verdict form and let them begin their deliberations without any comment.

In our opinion the defendant may not now assign as error any portion of the jury charge since, having been given an opportunity by the trial judge specifically to object, he did not object thereto and state distinctly his objections before the jury began its deliberations. We hold the defendant had a fair trial free from prejudicial error.

No error.

Judge Webb concurs. Judge BECTON concurs in the result.