#### STATE OF NORTH CAROLINA v. GREG GARNER

No. 733SC665

(Filed 9 January 1974)

Criminal Law § 113— necessity for instruction on alibi

The trial court erred in failing to instruct the jury that defendant, who relied on alibi, did not have the burden of proving it where defendant’s trial occurred prior to the opinion of State v. Hunt, 283 N.C. 617.

Appeal by defendant from Rouse, Judge, 16 April 1973 Session of Superior Court held in Carteret County.

Defendant was convicted of feloniously distributing marijuana in violation of G.S. 90-95.

Attorney General Robert Morgan by James E. Magner, Jr., Assistcmt Attorney General for the State.

A. B. Cooper, Jr. and Wheatly & Mason by C. Wheatly, Jr., attorneys for defendant appellant.

VAUGHN, Judge.

At trial defendant offered evidence that he was not present at the time and place the alleged crime was committed. The jury was not instructed that defendant, who relied on an alibi, did not have the burden of proving it. The trial occurred prior to the opinion of our Supreme Court in State v. Hunt, 283 N.C. 617, 197 S.E. 2d 513 and, therefore, the omission of the instruction constituted prejudicial error. State v. Moore, 19 N.C. App. 368, 198 S.E. 2d 760.

New trial.

Judges Morris and Hedrick concur.