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North Carolina v. Thornton

Filed: November 6, 1979.

STATE OF NORTH CAROLINA
v.
RICKY DONALD THORNTON



Appeal by defendant from Bruce, Judge. Judgment entered 16 March 1979 in Superior Court, Sampson County. Heard in the Court of Appeals 16 October 1979.

Erwin, Judge. Judges Vaughn and Hill concur.

Erwin

Defendant contends that the trial court committed error in its charge to the jury when it instructed as to intent as follows:

"I further instruct you that if you should find beyond a reasonable doubt that the defendant intended to point the pistol at some third party, that is not David Aman but some

other party who was in the American Legion Hut at the time of the fraycus (sic) but that he actually pointed it at David Aman then the legal effect would be the same as if the defendant had actually intended to point the pistol at David Aman."

Defendant asserts in his brief:

"The evidence presented to the jury, absent the excepted instruction, could have led the jurors to determine that since the gun was used in self-defense against some third party, or parties, its use was not criminal and therefore any pointing of the gun at David Aman was purely accidental and not intentional."

We do not agree. The evidence does not present a reasonable inference of self-defense. Without such inference, defendant cannot contend that his act of pointing a gun on the occasion in question was justifiable on his part. See State v. Dial, 38 N.C. App. 529, 248 S.E.2d 366 (1978). The record does not support defendant's contention that the jury could have found him legally justified in defending himself by the display and threatened use of a deadly weapon. Defendant's evidence is that he did not have a pistol or handgun on the occasion in question.

The rule is well established that a violation of G.S. 14-34 requires the intentional pointing of a gun without legal justification or excuse. Lowe v. Dept. of Motor Vehicles, 244 N.C. 353, 93 S.E.2d 448 (1956); State v. Adams, 2 N.C. App. 282, 163 S.E.2d 1 (1968). From our study of the charge contextually, we conclude that it presents the law fairly and clearly to the jury and is without prejudicial error. State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977).

Defendant was sentenced by the trial court as follows:

"It is Adjudged that the defendant be imprisoned for the term of Six (6) Months in the North Carolina Department of Correction, pay a fine of $500, Cost of Court, Attorney Fees, of said sentence, the defendant shall now serve an active sentence of Four (4) Months and that the execution of the remaining Two Months of the ...


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