Opinion
No. 7875
Decided December 16, 1977
Assault and Battery — Prosecutions — Evidence Where jury in defendant's trial for aggravated assault was instructed that state had burden of proving beyond reasonable doubt that defendant did not act in self-defense, and defendant contended that lack of direct evidence to rebut his state of mind that he was acting in self-defense, coupled with evidence that after assault he did not flee but instead called police and ambulance, prevented required finding, defendant's contention could not be accepted and jury could have made required finding on testimony of victim as to circumstances of assault and could disbelieve defendant.
David H. Souter, attorney general, and Edward A. Haffer, assistant attorney general, by brief, for the state.
James E. Duggan, of Concord, by brief, for the defendant.
MEMORANDUM OPINION
Defendant was convicted by a jury of aggravated assault on Albert Perozzi by striking him in the mouth with a hammer and his exceptions were transferred by DiClerico, J. The jury was instructed that the state had the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. Defendant's contention, that the lack of direct evidence to rebut the defendant's state of mind that he was acting in self-defense coupled with evidence that after the assault defendant did not flee but instead called the police and an ambulance prevents the required finding, cannot be accepted. The jury could have made the required finding on the testimony of the victim as to the circumstances of the assault and could disbelieve the defendant. State v. Cote, 108 N.H. 290, 293, 235 A.2d 111, 114 (1967); State v. Linsky, 117 N.H. 866, 379 A.2d 813 (1977).
Exceptions overruled.