majority">ARNOLD, Judge.

Defendant assigns as error the failure of the trial court, in its final mandate, to instruct the jury to return a verdict of not guilty if they should find that defendant acted in self-defense. Defendant contends that under State v. Dooley, 285 N.C. 158, 203 S.E. 2d 815 (1974), this is reversible error.

The trial judge is required to instruct the jury as to the law -based-on the evidence presented. G.S. 1-180. The judge is to charge-on all substantial features of the case which arise from the. evidence; and .all defenses presented by the evidence are substantial features of the casé. State v. Faust, 254 N.C. 101, 118 S.E. 2d 769 (1961). If there is evidence that defendant acted in self-defense the judge must charge on self-defense even though there is contradictory evidence by the State or discrepancies in defendant’s evidence. State v. Dooley, supra; State v. Hipp, 245 N.C. 205, 95 S.E. 2d 452 (1956).

-It is argued by the State that under the circumstances, a defense of self-defense was not raised, and that it was only *488out of abundant caution that self-defense was charged. The charge included a general statement concerning the law of self-defense and the things of which defendant must satisfy the jury in order to excuse the killing on grounds of self-defense.

In his final mandate the judge described each of the possible offenses and stated that the State must prove beyond a reasonable doubt that defendant “without justification or excuse” shot the deceased. He further instructed that “if you have a reasonable doubt as to any one or more of these things, it is your duty to return a verdict of not guilty.” The State asserts that based on these instructions, considered as a whole, it could not be assumed by the jury that a verdict of not guilty by reason of self-defense was not a permissible verdict.

While the State makes a logical argument Dooleynevertheless does require the trial judge to include not guilty by reason of self-defense as a possible verdict in his final mandate where the defense has been raised by the evidence. A failure to do so is not cured by an instruction on the law of self-defense in the body of the charge. State v. Dooley, supra, at 165, 166.

Defendant is entitled to a new trial for omission in the judge’s final mandate to the jury that self-defense was a possibility of acquittal.

A discussion of defendant’s remaining assignments of error is deemed unnecessary.

New trial.

Judges Morris and Hedrick concur.

Citation profile

Relationships

How this case has been treated — in progress