State v. Reep

182 S.E.2d 623 (1971)

12 N.C. App. 125

STATE of North Carolina v. Johnny REEP.

No. 7126SC407.

Court of Appeals of North Carolina.

August 4, 1971.

Atty. Gen. Robert Morgan by Howard P. Satisky, Staff Attorney, Raleigh, for the State.

Edward T. Cook, Liles and Cook, Charlotte, for defendant appellant.

BRITT, Judge.

Defendant first assigns as error the refusal of the trial court to quash the bill of indictment for that it did not with sufficient particularity charge defendant with a crime. The bill of indictment on which defendant was tried charged in pertinent part as follows: "That Johnny Reep * * * on the 26 day of September, 1970, * * * unlawfully, wilfully, and feloniously did *624 commit the abominable and detestable crime against nature with Leland Reed Tickle, a male person, 17 years of age". Under authority of State v. O'Keefe, 263 N.C. 53, 138 S.E.2d 767 (1964), we hold that the bill of indictment is sufficient and the assignment of error is overruled.

Defendant assigns as error the failure of the trial court to quash the bill of indictment for that it was improperly delivered to the court. Following a voir dire, the trial court found that the foreman of the grand jury delivered the bill of indictment to the officer serving the grand jury, which officer in turn gave the indictment to the solicitor who carried it into the courtroom. Defendant contends that the action of the solicitor was violative of G.S. § 15-141 which provides as follows: "Grand juries shall return all bills of indictment in open court through their acting foreman, except in capital felonies, when it shall be necessary for the entire grand jury, or a majority of them, to return their bills of indictment in open court in a body." (Emphasis added.) In providing that grand juries shall return their bills through their foreman (as opposed to by their foremen), we do not think the statute makes it mandatory that the foreman personally deliver bills of indictment to the court. We perceive no prejudice to the defendant in the instant case, therefore, the assignment of error is overruled.

In his third assignment of error, defendant contends that the trial court erred in denying his motion to quash the bill of indictment and dismiss the charges on the grounds that defendant's constitutional rights had been violated in that: (a) he was incarcerated for an excessive length of time under invalid process; (b) he was incarcerated for an excessive length of time in solitary confinement, was denied regular shaving, showers, exercise and change of clothing, thereby being punished as though he had been convicted of the charge against him; and (c) he was denied his right to a speedy trial on the charge against him. Although defendant appears to have been arrested on 27 September 1970 and confined until his trial on or about 1 February 1971, on the facts appearing in the record we hold that the court did not err in denying defendant's motion to quash the indictment and dismiss the case. It is noted that the sentence imposed is considerably less than the maximum allowed by statute. The assignment of error is overruled.

Finally, defendant assigns as error the additional instructions given to the jury after they had deliberated for a period of time, then returned to the courtroom and announced that they were hopelessly deadlocked. The additional instructions challenged were: "I might say there is not any reason to hurry in the case. This is a full week here and another week, if necessary, and you have until Saturday night. You don't have to hurry. But, suppose you go out and try again, don't give up too soon. You may retire."

Defendant contends the additional instructions had the tendency of coercing a guilty verdict and cites Trantham v. Elk Furniture Company, 194 N.C. 615, 140 S.E. 300 (1927), and State v. McKissick, 268 N.C. 411, 150 S.E.2d 767 (1966).

The additional instructions in McKissick appear to have been declared erroneous for the reason that the trial judge failed to instruct the jury that no one of them should surrender his conscientious convictions or his free will and judgment in order to agree upon a verdict. This was not true in the instant case. Before giving the instructions complained of, the court, among other things, said: "* * * [A]ccording to my watch, you have been out about an hour and fifty minutes. I don't want any member of the jury to surrender any conscientious opinion that he has about this matter * * *. I do not ask and would not permit a single one of you to participate in a verdict that did not reflect your *625 conscientious opinion. I do not ask or want you to do that." We hold that the additional instructions were free from prejudicial error and the assignment of error is overruled. State v. Fuller, 2 N.C.App. 204, 162 S.E.2d 517 (1968).

No error.

MORRIS and PARKER, JJ., concur.