On certiorari to review decision of the Court of Appeals,
Britt, Justice. Justice Huskins dissenting in part. Chief Justice Branch and Justice Meyer join in the dissent. Justice Carlton concurring. Justice Exum joins in the concurring opinion.
By numerous assignments of error argued in his brief, defendant contends that the trial court erred in the admission of certain evidence, in denying his motions to dismiss, and in its instructions
to the jury. After careful review we conclude that the trial court committed no prejudicial error in the death by vehicle case. In the hit-and-run case we conclude that the trial court erred in its jury instructions and that defendant is entitled to a new trial in that case.
The Court of Appeals held that the trial court did not err in denying defendant's motions to dismiss both charges on the ground of insufficiency of the evidence. We agree with this holding and with the reasoning given by the Court of Appeals in support of its holding.
Defendant contends the trial court erred in failing to sustain his objection to the district attorney's jury argument relating to the failure of defendant's wife to testify, and in failing to instruct the jury to disregard the argument.
The record indicates that one of defendant's attorneys, Mr. Aycock, made the opening argument to the jury; that no request was made prior to arguments that they be recorded; that Assistant District Attorney Teague followed Mr. Aycock in the jury arguments; that during Mr. Teague's argument, defendant made an objection to Mr. Teague's reference to the fact that the state could not call defendant's wife, an occupant of the car, as a witness; and that the court instructed the jury to "disregard counsel's last statement." The record further indicates that Mr. Aycock in his argument informed the jury that the state could have called occupants of the car as witnesses.
When the argument of the district attorney is challenged, preceding arguments by defense counsel should be contained in the record. State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977); State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975). This is so in order that the appellate court may judge the challenged remarks in context and determine if they are invited or provoked. It would appear that in the instance complained of here, the district attorney was responding to the argument made by defense counsel. We conclude that defendant has failed to show error.
Defendant contends that the Court of Appeals erred in holding that the trial court did not err in failing to instruct the jury on justification and excuse. For the reasons stated in the Court of Appeals' opinion, we agree with its holding on this point.
Defendant contends that the trial court erred in trying him on the death by vehicle charge, a misdemeanor, when that charge "had not been heard or tried in District Court."
"Except as provided in this Article, the district court has exclusive, original jurisdiction for the trial of criminal actions, including municipal ordinance violations, below the grade of felony, and the same are hereby declared to be petty misdemeanors." G.S. 7A-272(a).
G.S. 7A-271 (1979 Cum. Supp.) provides in pertinent part:
Jurisdiction of superior court. -- (a) The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division by this Article, except that the superior court has jurisdiction to try a misdemeanor:
(3) Which may be properly consolidated for trial with a felony under G.S. 15A-926;
G.S. 15A-926(a) provides:
Joinder of offenses and defendants. -- (a) Joinder of Offenses -- Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A-924.
Clearly the two offenses with which defendant was charged were based "on the same act or transaction." We hold that under
the facts in this case, the superior court had jurisdiction of the offense of death by vehicle.
Defendant contends that the trial court committed prejudicial error in the hit-and-run case by failing to properly instruct the jury on the elements of knowledge and intent. This contention has merit.
The court instructed the jury on the offense of hit-and-run driving as follows:
Now I charge that for you to find the defendant guilty of failing to immediately stop his vehicle at the scene of an accident or collision involving injury or death, the State ...