State v. Payne

185 S.E.2d 116 (1971)

280 N.C. 150

STATE of North Carolina v. Paul PAYNE.

No. 95.

Supreme Court of North Carolina.

December 15, 1971.

*118 Robert Morgan, Atty. Gen., by Thomas B. Wood, Asst. Atty. Gen., for the State.

Ottway Burton, Asheboro, for defendant appellant.

HIGGINS, Justice.

The victim of the alleged assault was 9 years of age. The defendant was 15 years, 11 months and 27 days of age. He weighed 155 to 160 pounds. Because of the tender age of the victim and the nature of the charge, the court had discretionary authority, and exercised it properly, to permit the solicitor to ask leading questions. State v. Clanton, 278 N.C. 502, 180 S.E.2d 5; State v. Pearson, 258 N.C. 188, 128 S.E.2d 251.

Likewise it was in the discretion of the court to determine whether to order the jury to visit and view the trailer where the assault occurred. The description of the trailer came entirely from the defendant. There was no conflict in the evidence regarding its structure or contents. The court acted well within its discretion in denying *119 the motion for the jury's inspection. State v. Ross, 273 N.C. 498, 160 S.E.2d 465.

The record indicates defense counsel and the solicitor were somewhat less than well restrained in their arguments. When defense counsel challenged the solicitor, the court admonished the solicitor, "Let's try to stay away from this sort of thing. Let's argue the facts of the case and the law." The court overruled the defendant's motion for a mistrial on account of the solicitor's argument.

The law takes a sensible view of jury arguments realizing that in hotly contested cases counsel sometimes approach the out of bounds line. But the judge is on the field and is in a favored position to call the play and to determine whether the debate is within permissible bounds. Except in extreme cases, the appellate court will not intervene. No cause whatever for intervention appears in this record. State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424; State v. Phillips, 262 N.C. 723, 138 S.E.2d 626; State v. Dickens, 278 N.C. 537, 180 S.E.2d 844.

The State's evidence is stated in skeleton form only to the end the record may be kept as unsoiled as possible. The evidence in its entirety makes out a strong case of assault with intent to commit rape. The defendant's evidence, as well as that of his associate, depicts total innocence. The jury resolved the conflict in ten minutes. There was no evidence to support a lesser included offense. State v. Allen, 279 N.C. 115, 181 S.E.2d 453; State v. Jones, 249 N.C. 134, 105 S.E.2d 513.

The defendant's objection to the judgment is not well advised. The penalty exacted is a payment of $71.08 costs, remaining a student or gainfully employed for five years, and obeying state and federal laws.

In the trial, verdict and judgment there is

No error.