propriety instruction in North Carolina

1997“The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State’s evidence is positive as to each element of the crime charged and whether there is any conflicting *327 evidence relating to any of these elements.” State v. Leroux, 326 N.C. 368, 378 , 390 S.E.2d 314, 322 , cert. denied, 498 U.S. 871 , 112 L.

1996“The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State’s evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.” State v. Leroux, 326 N.C. 368, 378 , 390 S.E.2d 314, 322 , cert. denied, 498 U.S. 871 , 112 L.

2019State v. Chaves , 246 N.C.

2016State v. Chaves, --- N.C.App. ----, ----, 782 S.E.2d 540 , 542-43 (2016) (citation and brackets omitted).

1968Thus, as stated in Honeycutt v. Bank, 242 N.C. 734, 744 , 89 S.E. 2d 598 : 'An election is required only when the will confronts a beneficiary with a choice between two benefits which are inconsistent with each other.’ ” Nothing else appearing, when a testator purports “to devise specific property, not owned by him, to a person other than the true owner, and provides other benefits for the owner of such specific property, such beneficiary is put to his election.

1968Thus, as stated in Honeycutt v. Bank, 242 N.C. 734, 744 , 89 S.E. 2d 598 : 'An election is required only when the will confronts a beneficiary with a choice between two benefits which are inconsistent with each other.’ ” Nothing else appearing, when a testator purports “to devise specific property, not owned by him, to a person other than the true owner, and provides other benefits for the owner of such specific property, such beneficiary is put to his election.

2017State v. Covington , --- N.C.App. ----, ----, 788 S.E.2d 671 , 675 (2016) (citation omitted). *507 Our prior caselaw makes clear that "[t]he trial court is not obligated to give a lesser included instruction if there is no evidence giving rise to a reasonable inference to dispute the State's contention." State v. Lucas , 234 N.C.App. 247 , 256, 758 S.E.2d 672 , 679 (2014) (citation, quotation marks, and ellipses omitted).

2017State v. Covington , --- N.C.App. ----, ----, 788 S.E.2d 671 , 675 (2016) (citation omitted). *507 Our prior caselaw makes clear that "[t]he trial court is not obligated to give a lesser included instruction if there is no evidence giving rise to a reasonable inference to dispute the State's contention." State v. Lucas , 234 N.C.App. 247 , 256, 758 S.E.2d 672 , 679 (2014) (citation, quotation marks, and ellipses omitted).

2016State v. Bedford, 208 N.C.App. 414 , 417, 702 S.E.2d 522 , 526 (2010) (internal citations, quotation marks, and brackets omitted).

2016State v. Bedford, 208 N.C.App. 414 , 417, 702 S.E.2d 522 , 526 (2010) (internal citations, quotation marks, and brackets omitted).

2002The propriety of a rule nearly identical to ours was addressed by the United States Supreme Court in Lefkowitz v. Newsome, 420 U.S. 283 , 43 L.

2002The propriety of a rule nearly identical to ours was addressed by the United States Supreme Court in Lefkowitz v. Newsome, 420 U.S. 283 , 43 L.

1996In State v. Skipper, 337 N.C. 1 , 446 S.E.2d 252 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 953 , 130 L.Ed.2d 895 (1995), this Court stated: "The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements." Id. at 26, 446 S.E.2d at 265 (quoting State v. Leroux, 326 N.C. 368, 378 , 390 S.E.2d 314, 322 , cert. denied, 498 U.S. 87

1996In State v. Skipper, 337 N.C. 1 , 446 S.E.2d 252 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 953 , 130 L.Ed.2d 895 (1995), this Court stated: "The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements." Id. at 26, 446 S.E.2d at 265 (quoting State v. Leroux, 326 N.C. 368, 378 , 390 S.E.2d 314, 322 , cert. denied, 498 U.S. 87

1990State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190 (1985); State v. Strickland, *379 307 N.C. 274 , 298 S.E.2d 645 (1983), holding modified by State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775 .

1990State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190 (1985); State v. Strickland, *379 307 N.C. 274 , 298 S.E.2d 645 (1983), holding modified by State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775 .

1990State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190 (1985); State v. Strickland, *379 307 N.C. 274 , 298 S.E.2d 645 (1983), holding modified by State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775 .

1990State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190 (1985); State v. Strickland, *379 307 N.C. 274 , 298 S.E.2d 645 (1983), holding modified by State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775 .

1990State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190 (1985); State v. Strickland, *379 307 N.C. 274 , 298 S.E.2d 645 (1983), holding modified by State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775 .

1990State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190 (1985); State v. Strickland, *379 307 N.C. 274 , 298 S.E.2d 645 (1983), holding modified by State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775 .

1963Jeffreys v. Burlington, 256 N.C. 222 , 123 S.E. 2d 500 .

1963Jeffreys v. Burlington, 256 N.C. 222 , 123 S.E. 2d 500 .

1962“Our train of reasoning is not complete without adding that if, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has mistaken it to be his own, the law will not imply the necessity of election.” Elmore v. Byrd, 180 N.C. 120 , 104 S.E. 162 ; Benton v. Alexander, supra; Byrd v. Patterson, 229 N.C. 156 , 48 S.E. 2d 45 .

1962“Our train of reasoning is not complete without adding that if, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has mistaken it to be his own, the law will not imply the necessity of election.” Elmore v. Byrd, 180 N.C. 120 , 104 S.E. 162 ; Benton v. Alexander, supra; Byrd v. Patterson, 229 N.C. 156 , 48 S.E. 2d 45 .

1962“Our train of reasoning is not complete without adding that if, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has mistaken it to be his own, the law will not imply the necessity of election.” Elmore v. Byrd, 180 N.C. 120 , 104 S.E. 162 ; Benton v. Alexander, supra; Byrd v. Patterson, 229 N.C. 156 , 48 S.E. 2d 45 .

1962“Our train of reasoning is not complete without adding that if, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has mistaken it to be his own, the law will not imply the necessity of election.” Elmore v. Byrd, 180 N.C. 120 , 104 S.E. 162 ; Benton v. Alexander, supra; Byrd v. Patterson, 229 N.C. 156 , 48 S.E. 2d 45 .

1956In this connection, “the doctrine of election” as stated in the case of Lamb v. Lamb, 226 N.C. 662 , 40 S.E. 2d 29 , opinion by Seawell, J., “as applied to wills, is based on the principle that a person cannot take benefits under the will and at the same time reject its adverse or onerous provisions, — cannot, at the same time, hold under the will and against it.” And it is stated further that “the intent to put the beneficiary to an election must clearly appear from the will,” and that “the propriety of this rule especially appears where, in derogation of a property right, the will purports t

1956In this connection, “the doctrine of election” as stated in the case of Lamb v. Lamb, 226 N.C. 662 , 40 S.E. 2d 29 , opinion by Seawell, J., “as applied to wills, is based on the principle that a person cannot take benefits under the will and at the same time reject its adverse or onerous provisions, — cannot, at the same time, hold under the will and against it.” And it is stated further that “the intent to put the beneficiary to an election must clearly appear from the will,” and that “the propriety of this rule especially appears where, in derogation of a property right, the will purports t

1945The propriety of applying the rule to cases of this sort is perhaps most satisfactorily explained in Boone v. Lee, 175 N. C., 383, 95 S. E., 659 , as arising out of the theory that the written instrument contains the final expression of the agreement between the parties, and that one who seeks to show otherwise should be required to do so by higher degree of proof than a mere preponderance of the evidence.

1945The propriety of applying the rule to cases of this sort is perhaps most satisfactorily explained in Boone v. Lee, 175 N. C., 383, 95 S. E., 659 , as arising out of the theory that the written instrument contains the final expression of the agreement between the parties, and that one who seeks to show otherwise should be required to do so by higher degree of proof than a mere preponderance of the evidence.

1880State v. Secrest, 80 N. C., 450 . 2.

1876Rep., 498 , and approved in Adams v. Reeves, 74 N. C.

1876The propriety of the rule governing appeals, as laid down in Wade v. The City of Newbern, 72 N. C.

1850Perhaps no case could present in a stronger light than the present case does the propriety of the rule laid down in Irby v. Wilson , 21 N.C. 568 , that an ex parte judgment against a person, not a citizen or inhabitant of the country, has no extraterritorial obligation, and ought not to be respected by the courts of other countries further than it may be made to appear to be right.