State v. Henry

290 S.E.2d 775 (1982)

STATE of North Carolina v. Robbie Odell HENRY.

No. 8121SC1152.

Court of Appeals of North Carolina.

May 4, 1982.

*776 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Douglas A. Johnston, Raleigh, for the State.

John J. Schramm, Jr., Winston-Salem, for defendant-appellant.

WELLS, Judge.

Defendant brings forth two assignments of error on this appeal: the trial court's failure to submit to the jury possible verdicts of larceny from the person and misdemeanor larceny, and the trial court's refusal to question the jurors about a newspaper article about defendant which was published on the second day of the jury's deliberations. We find no error in defendant's trial.

Citing State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976), defendant first contends that there was evidence from which a jury could have found defendant guilty of larceny from the person and misdemeanor larceny, and that the trial judge's failure to submit those offenses to the jury was error. First, we note that larceny from the person is a lesser included offense of common law robbery, State v. Swaney, 277 N.C. 602, 178 S.E.2d 399 (1971), cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428 (1971); State v. Kirk, 17 N.C.App. 68, 193 S.E.2d 377 (1972), which differs from common law robbery in that it lacks the essential element that the victim be put in fear. G.S. 14-72. Similarly, misdemeanor larceny is a lesser included offense of felony larceny, which lacks the essential elements of larceny that the property have a value of over $400.00, or that the larceny was from the person. G.S. 14-72(a); G.S. 14-72(b)(1).

Essentially, defendant is arguing that the jury could have found that Mrs. Caudill was not put in fear during the robbery. However, the fact that a jury might accept the evidence in part and reject it in part is not sufficient to warrant inclusion of a lesser included offense. State v. Coats, 46 N.C.App. 615, 265 S.E.2d 486 (1980). The proper test was enunciated in Justice Huskins' dissent in State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979), as follows:

Submission of a lesser included offense when there is no evidence to support the milder verdict is not required when the indictment charges felony murder, arson, burglary, robbery, rape, larceny, felonious assault, or any other felony whatsoever. In all such cases if the evidence tends to show that the crime charged in the indictment was committed and there is no evidence tending to show commission of a crime of lesser degree, the court correctly refuses to charge on unsupported lesser degrees. The presence of evidence tending to show commission of a crime of lesser degree is the determinative factor. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971), and cases there cited; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).

In this case, Mrs. Caudill testified at some length to the fact that she was afraid of the defendant, because in the robbery one month earlier he used violence against her. This testimony was neither impeached nor rebutted by defendant, and thus there was no evidence from which a jury could find that Mrs. Caudill was not put in fear. *777 We hold that the trial judge was not required to submit the offenses of larceny from the person and misdemeanor larceny to the jury, and overrule this assignment of error.

Defendant's second assignment of error concerns the trial judge's refusal, at defendant's request, to question the jurors about a newspaper article about defendant. The record on this point reads as follows:

(The jury retired to the jury room to begin its deliberations at 4:29 p. m., June 16, 1981, and returned to the courtroom with a question at 4:43 p. m., on the same day, June 16, 1981.) [MR. SCHRAMM: Let the record show that on June 16, prior to the juryon June 17, rather, prior to the jury commencing its deliberation, counsel for the defendant approached the Court in chambers and advised the Court that on June 17, in the WINSTON-SALEM JOURNAL/SENTINEL, on page 38, there appeared a statement, or a newspaper report, about the case, Mr. Henry's case, that was being considered by the jury, and that in that report it did recite that the defendant had three other cases, robbery cases, pending against him, and that counsel for the defendant advised the Court that he would like to have the Court question the jurors before they resumed deliberations as to whether they had read that, especially that part of the newspaper report that indicated that this defendant had three other cases pending against him. And the court advised counsel in chambers that he would not so question the jury. Defendant again conferred with Mr. Schramm at defense table.) MR. SCHRAMM: The defendant would also like the record to show that the newspaper report also read in part as follows: "Another jury has already convicted Henry of robbing Mrs. Caudill at the station on September 17, and he has been sentenced to eight years in prison. He still faces trial on similar charges."]

It thus appears that the article was published in the morning of the second day of the jury's deliberations.

In considering this type of situation, our courts have held that the trial court exercises its discretion in determining whether or in what manner to question jurors about a newspaper article, and absent a showing of prejudice and abuse of discretion, the trial court's decision does not constitute a basis for a new trial. State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1977); State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652 (1971); State v. Byrd, 50 N.C. App. 736, 275 S.E.2d 522 (1981), disc. rev. denied, 303 N.C. 316, 281 S.E.2d 654 (1981). While it would have been the "better practice" for the trial court to have asked the jurors if they had read the article and had been influenced by it, see McVay and Simmons, supra, reversible error is not presumed. Id., Byrd, supra. We find no abuse of discretion here, and overrule this assignment of error.

Defendant's trial was fair and free from prejudicial error.

No Error.

WEBB and WHICHARD, JJ., concur.