State v. Robinson

190 S.E.2d 270 (1972)

15 N.C. App. 362

STATE of North Carolina v. Restony ROBINSON. STATE of North Carolina v. Mary ROBINSON.

No. 7218SC523.

Court of Appeals of North Carolina.

August 2, 1972.

Certiorari Denied September 14, 1972.

*272 Atty. Gen. Robert Morgan by Asst Atty. Gen. William F. Briley, for the State.

Frye, Johnson & Barbee, by Walter T. Johnson, Jr., Greensboro, for defendant appellants.

Certiorari Denied by Supreme Court September 14, 1972.

GRAHAM, Judge.

Defendants assign as error the denial of their motion for a bill of particulars made on 4 January 1972, the date on which the case was set for trial peremptorily as the first case.

Although defendants were arrested four months previously and were given a preliminary hearing on 6 September 1971, no motion was made for a bill of particulars and no request was made of the solicitor for information until court opened on 4 January 1972. The peremptory setting for that date was prompted by a previous continuance made necessary when defendants requested the discharge of their second court-appointed attorney and asked for a continuance in order to obtain counsel of their own choosing. Counsel first appointed to represent defendants had also been discharged at their request but remained willing and available to assist in apprising counsel subsequently obtained as to information he had with respect to the State's case. He had represented defendants at the preliminary hearing and had subsequently filed several motions on their behalf.

After finding the above facts, and others, the trial judge denied defendants' motion in his discretion. We affirm his order. The motion was addressed to the discretion of the trial judge, G.S. § 15-143, and his ruling thereon is not subject to review, except for palpable and gross abuse thereof. State v. Vandiver, 265 N.C. 325, 144 S.E.2d 54. No abuse of discretion is shown.

Defendants contend the court erred in allowing in evidence various portions of McMiller's testimony. The record does not show that this testimony was objected to at the trial or that any motion was made to strike it. Moreover, we are of the opinion that the testimony complained of would have been admissible even if objection had been properly imposed.

Defendants bring forth one exception to the charge, contending that the court improperly charged the jury that they must find both defendants guilty or both of them not guilty. An instruction to this effect might have been appropriate if defendants had been the only ones named in the bill of indictment, because when all conspirators are acquitted except one, the one convicted is entitled to his discharge. State v. Littlejohn, 264 N.C. 571, 142 S.E.2d 132. Here, however, defendants were charged with conspiring with Tinsley as well as with each other. Hence, the jury could have found one of them guilty and the other not guilty on the theory that the guilty party conspired with Tinsley while *273 the other party conspired with no one. However, upon reading the entire charge contextually, as we are required to do, State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476, we do not find that the court instructed the jury as defendants contend. We do not see how the charge as given could have left the jury with the impression that the conviction of one defendant necessitated the conviction of the other. The court gave separate instructions as to the findings necessary to convict each defendant, and carefully instructed the jury as to the possible verdicts that could be returned as to each defendant. We hold that the charge does not contain prejudicial error.

Other assignments of error relate only to the appeal of feme defendant. She contends that it was error for the court to permit Raymon McMiller to testify against her. Her position is that the State's evidence shows her to be the spouse of McMiller, and that the provisions of G.S. § 8-57 therefore render him an incompetent witness against her.

In commenting on G.S. § 8-57, Justice Bobbitt (now Chief Justice) stated for the Supreme Court in the case of State v. Alford, 274 N.C. 125, 161 S.E.2d 575:

"No statute provides that a husband is not a competent witness against his wife or that a wife is not a competent witness against her husband in any criminal action or proceeding. The statute now codified as G.S. § 8-57, and the statutes on which it is based, simply provide that rules of the common law with reference to whether a husband is competent to testify against his wife or a wife is competent to testify against her husband in a criminal action or proceeding are unaffected by these statutes. . . ."

The opinion in Alford collects and summarizes many of the cases relating to exceptions to the general common law rule that one spouse is not a competent witness against the other in a criminal proceeding. It appears from these authorities that an exception to the general rule is applicable where one spouse is tried for a felony committed against the other spouse. For instance, in discussing exceptions to the common law rule, the Supreme Court stated in State v. Hussey, 44 N.C. 123: "The rule, as we gather it from authority and reason, is, that a wife may be a witness against her husband for felonies perpetrated, or attempted to be perpetrated on her.. . ." See also State v. Alderman, 182 N.C. 917, 110 S.E. 59, where the husband was held a competent witness to testify against his wife upon her trial for attempting to murder him by poisoning.

Feme defendant in this case was charged with a serious felony which she and others allegedly perpetrated against the man she contends is her husband. The public's interest in having her brought to justice far outweighs any conceivable interest the public might have in precluding McMiller from testifying against her. We hold that he was a competent witness.

Feme defendant also contends that the court erred in failing to instruct the jury that there is a rebuttable presumption that she acted under the influence or coercion of her husband, Restony Robinson. There is authority in this State that where a married woman has committed a criminal act in the presence of her husband, a rebuttable presumption arises that she was acting under his influence or coercion. State v. Cauley, 244 N.C. 701, 94 S.E.2d 915.

We note that feme defendant contends she is the wife of McMiller for purposes of one assignment of error and the wife of Restony Robinson for purposes of another. Conceding for purposes of argument that the evidence would permit the jury to find that defendants were lawfully married, we nevertheless hold that the presumption in question was not available here. "When on trial for murder or treason, the wife is almost universally denied the benefit of the presumption that she was coerced." 35 N.C.L.Rev. 104. See *274 also Stansbury, N.C. Evidence 2d, § 245 at p. 597. It stands to reason that if the presumption is not available in a trial for murder, it is likewise not available in a trial for conspiracy to commit murder.

We have carefully reviewed all of defendants' assignments of error and conclude that they had a fair trial free from prejudicial error.

No error.

PARKER and VAUGHN, JJ., concur.