State v. Cottingham

226 S.E.2d 387 (1976)

30 N.C. App. 67

STATE of North Carolina v. Frederick James COTTINGHAM.

No. 7620SC80.

Court of Appeals of North Carolina.

July 7, 1976.

*388 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

Pittman, Pittman & Dawkins by Donald M. Dawkins, Rockingham, for defendant-appellant.

PARKER, Judge.

This is an appeal by the defendant, Frederick James Cottingham, from the same trial at which his co-defendants, Eugene McKenzie and Patricia Ann McKenzie, were also found guilty. Each of the three defendants appealed. Their attorneys caused three separate records on appeal to be filed in this Court. There should have been but one. Rule 11(d), North Carolina Rules of Appellate Procedure. For the reasons *389 stated by Chief Judge Brock in the opinion in State v. McKenzie, N.C.App., 226 S.E.2d 407, which is filed contemporaneously herewith, defendant Cottingham's court appointed attorney, Mr. Donald M. Dawkins, will be personally taxed with costs in the sum of $150.00.

Defendant Cottingham assigns error to the consolidation of the three cases for trial. Since each defendant was charged with the same offense, the cases were properly joined for trial. G.S. 15A-926(b)(2). The solicitor did not file a written motion for joinder, but appellant has shown no way in which he was prejudiced because the motion was not in writing. Even in the absence of any motion, the trial judge may direct that criminal cases be consolidated for trial where, as here, proper grounds for joinder exist and when to do so will promote the ends of justice and facilitate proper disposition of the cases on the docket before him.

Defendant presents a number of assignments of error directed to the court's rulings sustaining objections to questions asked by defense counsel of certain witnesses. The record does not show what the answers would have been had the witnesses been permitted to answer. Therefore we cannot know whether the rulings were prejudicial. The burden is on appellant not only to show error but to show prejudicial error. State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972).

Defendant assigns error to portions of the court's charge to the jury which he contends encouraged the jury to treat all three defendants in the same manner. It is true, of course, that "when two or more defendants are jointly tried for the same offense, a charge which is susceptible to the construction that the jury should convict all if it finds one guilty is reversible error." State v. Tomblin, 276 N.C. 273, 276, 171 S.E.2d 901, 903 (1970). Examination of the charge in the present case, however, reveals that the jury was clearly instructed to reach a separate verdict as to each defendant. The judge separately stated each particular charge as to each defendant and instructed as to the applicable law on each offense. The jury could not have been misled into believing that if they found one or more of the defendants guilty they were to find all three guilty. Any possible question as to this was removed when, after the foreman of the jury announced, "Your honor, we combined it all and found all parties guilty as charged," the judge properly refused to accept the foreman's statement as a verdict. Instead, he reinstructed the jury, again clearly informing them as to the permissible verdicts as to each defendant and instructing them that they "must return a verdict as to each defendant." The jury was then sent back to the jury room, and on return the foreman correctly announced the verdict as to each defendant. Thereafter, on motion of the attorneys for the defendants, the jury was polled, and all members of the jury agreed that the separate verdicts announced by their foreman were their verdicts and that they still assented thereto.

We have carefully examined all of defendant's remaining assignments of error, and in the trial and in the judgment appealed from find

No error.

BRITT and MARTIN, JJ., concur.